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News and Views — Case Comment on Frank v. Canada (Attorney General)

Frank v. Canada (Attorney General) |

2015 CarswellOnt 10870 |

Ontario Court of Appeal



In Frank v. Canada (Attorney General), (2015 CarswellOnt 10870) the Ontario Court of Appeal reversed the decision of the Superior Court (2014 CarswellOnt 5850), and upheld a restriction on voting in Federal elections to those who had been non-resident for less than five years.  The applicants were Canadian citizens with strong ties to Canada who had been resident in the United States long enough to make them ineligible to vote.  At trial, the restriction under the Canada Elections Act was found to violate s. 3 of the Canadian Charter of Rights and Freedoms.



On appeal, the Attorney General conceded the Charter violation.  However, the majority found the 5 year limit to be a reasonable restriction.  Strathy C.J.O. wrote that Canadian citizens non-resident for five years are largely not governed by the Canadian legal system, and excluding them from the franchise helped strengthen the social contract and enhance the legitimacy of laws.  The minority opinion, by Laskin J.A., took an opposing view. 



The most questionable part of the majority’s decision lies in its consideration of a pressing and substantial objective in the first part of the “section 1” analysis.  At trial, Penny J. defined the government’s objective as fairness to resident voters and concerns over electoral fraud.  Concern was expressed that these objectives were not pressing and substantial, although a full analysis under s. 1 was conducted. During oral argument on appeal, the Attorney General focused on protecting Canada’s social contract by promoting fairness in the electoral process. The minority felt that this was a new argument that should likely not be addressed on appeal, and had not been addressed in the 9000 page application record.  The majority claimed it was a mere shift in emphasis.  



Even if properly pleaded, Laskin J.A. was concerned about this characterization.  In questioning whether a pressing and substantial objective was present, he pointed out that “a social contract is a symbolic representation of the relationship between citizens of the state”, and worried that the majority and the Attorney General had “substituted a philosophical justification for voting rights for the constitutional guarantee in s. 3 of the Charter.”



These concerns were valid.  A court should seek to examine the objective of legislation in the most exacting terms.  Defining an objective in symbolically may make it more difficult to evaluate properly or in extreme circumstances could completely mischaracterize it.  In the final aspect of the proportionality test, balancing the effect of the measures, the majority stated only that “ the salutary effects of the legislation are the strengthening of the bond between the electorate and the elected.”  There may very well be times when a legislative objective and benefit closely coincide,  but the wording of the majority here comes closer to re-phrasing than true analysis. 



The Supreme Court of Canada has given consideration to the wording of objectives, in the case Sauvé v. Canada (Chief Electoral Officer) (2002 CarswellNat 2883).  Sauvé also dealt with s. 3 of the Charter, considering voting rights of those in prison.  The case was addressed by both the majority and minority.  



Sauvé warns that philosophically based or symbolic objectives should not command deference, rather, “broad, symbolic objectives are problematic.” Concern was expressed that “vague and symbolic objectives make the justification analysis more difficult” as an unclear characterization can leave little room for argument.  In that case, the objectives put forth to justify removing the vote from incarcerated persons were enhancing civic responsibility and respect for the rule of law, along with creating additional criminal sanction.  McLachlin C.J., for the majority, stated that “The rhetorical nature of the government objectives advanced in this case renders them suspect.”   



Perhaps no Canadian legal document contains more abstract wording and vague language than the Charter.  In this sense, the Charter itself could be termed highly symbolic.  But the jurisprudence surrounding the interpretation of legal phraseology in general involves, in almost every instance, carefully delineated criteria and testing to give these symbolic terms legal effect. The Oakes test itself is a multi-part consideration to give tangibility to the phrase “reasonable limit”. Crafting meaning for the term involved creating a several part test to guide the judiciary, and even new reliance on social scientific evidence to aid it.  It is hopefully not to broad to suggest that for the most part, judicial weighing of language generally makes symbolism more easily parsed, rather than adding additional layers of abstract meaning. 



(At the trial level in Frank, it should be noted that even the original objective of “fair elections” was further broken down into several more concrete objectives.  The court considered the factors of promoting equality  by preventing those with greater means from dominating electoral debate, and creating a better informed citizenship and fostering fairness in the democratic process.)



Where broad symbolism has been employed in Charter analysis, it has most often been used to uphold the rights guaranteed in the Charter.  Laskin J.A. noted that in Sauvé the notion of a social contract was used to find that prisoners had the right to vote under s. 3, not to exclude a class of citizens from the franchise.  It is the rights and freedoms in Charter values that are given broad and liberal interpretation, not countervailing considerations.  



Neither the majority in Sauvé or the minority in Frank were content to rest their determination solely on the government’s objective in the s. 1 analysis.  Judges should not shy away from holding the government account on basic principles such as why it has brought forth a policy or law, however.  Considering whether an objective is pressing and substantial will likely be where this sort of unneeded symbolism is likely to creep into jurisprudence, as it is among the more open ended aspects of an often-applied constitutional test.  But courts must be careful to hold actual policy above symbolic statements in all cases.  Just as the law usually prefers substance to form, substance must also take precedence over unsubstantiated rhetoric.   
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