Skip to main content

The Supreme Court of Canada in Ottawa on June 8, 2016.Blair Gable/The Globe and Mail

Proposed legislation granting long-term Canadian expats the right to vote will render a court fight over the issue moot, the federal government argues in new filings.

As a result, the government is calling for a year-long adjournment of a Supreme Court of Canada hearing – set for February – in which two expats were expected to challenge parts of the Canada Elections Act that have disenfranchised them.

"If Bill C-33 is enacted in its current form, the appellants will have the right to vote in future elections," the government says in its motion to the chief justice. "An adjournment of the appeal is warranted to allow Parliament to debate and consider the bill."

At issue in the legal battle is a ban on Canadians' voting in federal elections if they have lived abroad more than five years. Ontario's top court has upheld the restriction as constitutional, prompting the pending the Supreme Court challenge.

The government says putting the case on hold until the top court's 2018 winter session would respect Parliament's role in deciding important public policy issues. It would also be in keeping with not wasting court resources by spending time deciding on an issue that will likely have been resolved and would therefore be "moot," the government says.

The two plaintiffs, however, argue that Canada's highest court should reject the government's adjournment request.

They argue expats won't be able to vote in at least three byelections scheduled for before the legislation becomes law. They also say it's not certain the bill – introduced in November – will in fact pass, and that the decision by the Ontario Court of Appeal upholding the voting restrictions was wrong and needs to be dealt with.

The key underlying point, the expats argue, is that the Supreme Court should affirm their right to vote is guaranteed by the Constitution and should not be subject to government whim.

"The appellants are highly vulnerable to any change in policy on protecting the right to vote of non-resident Canadians by future governments," they say in their court filings. "Review by this court remains necessary, and delay is unwarranted."

Gillian Frank, one of the two plaintiffs who live in the United States, said he was thrilled the Liberal government introduced Bill C-33, saying it would make Canadian democracy "more robust and inclusive" if passed.

At the same time, he said, the government's adjournment request is premature and goes against the "democratic spirit" of their promises. In any event, he said, the Ontario Court of Appeal decision cannot be allowed to stand.

"Any government could remove our right to vote in the future," Frank said in an email Monday. "The Liberals should support Canadians abroad at the (Supreme Court) and help us in our efforts to obtain a decision that will permanently protect our right to vote."

The federal government has long argued the restriction on expat voting – enacted in 1993 but only enforced under the former Conservative government of Stephen Harper – was a reasonable and legitimate policy decision that in no way violates the Constitution.

Ontario's Court of Appeal upheld that view in July last year, overturning a 2014 ruling that had declared the legislation unconstitutional.

As many as 1.4 million Canadians abroad are believed to be affected by the law.