Progressive Enfranchisement is not Universal EnfanchisementFrank v. Canada (Attorney General), 2019 SCC 1 (CanLII)
A national identity, in a multicultural, multilingual, and highly mobile population, is a challenging concept for a modern post-nation state democracy. Nations are themselves a socially constructed community, imbued with rights, responsibilities and laws.
This Canada Day, reflecting on what Canadian citizenship means, and what legal democratic rights this citizenship provides, may provide some insight into our federal election this fall, and the future of our democracy.
In his 1983 book, Imagined Communities, Benedict Anderson describes some of the features of these social constructs:
The nation is imagined as limited because even the largest of them, encompassing perhaps a billion living human beings, has finite, if elastic, boundaries, beyond which lie other nations. No nation imagines itself coterminous with mankind. The most messianic nationalists do not dream of a day when all the members of the human race will join their nation in the way that it was possible, in certain epochs, for, say, Christians to dream of a wholly Christian planet. It is imagined as sovereign because the concept was born in an age in which Enlightenment and Revolution were destroying the legitimacy of the divinely-ordained, hierarchical dynastic realm. Coming to maturity at a stage of human history when even the most devout adherents of any universal religion were inescapably confronted with the living pluralism of such religions, and the allomorphism between each faith's ontological claims and territorial stretch, nations dream of being free, and, if under God, directly so. The gage and emblem of this freedom is the sovereign state. Finally, it is imagined as a community, because, regardless of the actual inequality and exploitation that may prevail in each, the nation is always conceived as a deep, horizontal comradeship. Ultimately it is this fraternity that makes it possible, over the past two centuries, for so many millions of people, not so much to kill, as willingly to die for such limited imaginings.Though Irish in citizenship, Anderson was born in Kuniming, Yunan, China, died in Batu, East Java, Indonesia, and lived in many countries around the world. In this way, he is perhaps one of the best to speculate, and compare and contrast concepts and notions of national identity.
Anderson's works also roughly correspond with the advent of the Charter, which pronounces a very explicit and deliberate democratic right for citizens, as follows,
3. 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. [emphasis added]For most Canadians, this notion of Canadian identity is directly and intricately related to the right to vote.
Despite the broad wording of this provision in the Charter, this democratic right has always been restricted in some very important ways. Most notably, voting in Canada is restricted to those citizens who are 18 and older, under s. 3 of the Canada Elections Act. This age limit was not always set at this level, and the provision in the Act was amended in 1970, lowering the limit from the previous voting age limit of 21. Various political parties, commentators, and legislators, continue to debate this threshold, considering whether it should be lowered still to 16 (or even raised higher).
This dilemma is explained by Kees Aarts and Charlotte van Hees, discussing European trends around voting ages in Electoral Insight,
Democracy grows on contradictions, and one of these is about the question of who exactly belongs to the demos. On the one hand, general suffrage is seen as a defining characteristic of democracy; on the other hand, suffrage never extends to all those who are ruled. Drawing the lines is also known as the problem of inclusiveness. Who should be excluded from taking part in elections? This is one of the toughest questions of democratic theory. The Austrian economist Schumpeter argued long ago that, precisely because there is no simple answer, "must we not leave it to every populus to define himself?" This radical viewpoint is, however, not generally accepted. It is more common to try and pin down more or less universal criteria for inclusion. Such criteria are at first necessarily abstract: for example, a voter should be able to "reason" about politics, and to have political preferences.Canada's history has generally been one of progressive enfranchisement, gradually expanding the pool of those who are eligible to vote.
At its inception in 1867, only a small minority were qualified to vote for the 181 members of Parliament in the 4 original provinces. The absence of federal legislation meant that provincial laws explicitly excluded non-Anglo-Saxon populations, specifically focusing on those of Japanese, Chinese and Indian origins. Federal legislation in 1898 extended this franchise, but then restricted it again in 1920 with the Dominion Elections Act, which wasn't repealed until 1949.
The 1885 Electoral Franchise Act was the first attempt by the Federal government to regulate voting eligibility, allowed some Indigenous people in Canada to vote, and introduced a complicated property-based requirement for voting. Enfranchisement of Indigenous people did not fully occur until 1960.
Although some white women enjoyed limited voting rights pre-Confederation, between 1791-1849, the Wartime Elections Act and Military Voters Act of 1917 was the first attempt to provide women the right to vote, but only if they were relatives of Canadian soldiers who were serving overseas in WWI, or women in active service as military nurses.
By 1918, this was extended to all white women over the age of 21. This extension to the other half of the white population was very much strategic in nature, as described in A History of the Vote in Canada,
Borden and his government, who saw their situation as increasingly desperate, attempted to modify the composition of the electorate by changing the electoral law. Borden confided to his diary, "Our first duty is to win at any cost the coming election so that we may continue to do our part in winning the war and that Canada be not disgraced." On September 20, 1917, Parliament adopted not one, but two election acts, though Borden had to use closure to push them through. ... The act also disenfranchised conscientious objectors. This affected Mennonites and Doukhobors, even though the federal government had exempted them officially from military service, the former in 1873 and the latter in 1898. Individuals born in an enemy country who became naturalized British subjects after March 31, 1902, were also disenfranchised, with the exception of those born in France, Italy or Denmark and who arrived in Canada before the date on which their country of origin was annexed by Germany or Austria. Also included were British subjects naturalized after March 31, 1902, whose mother tongue was that of an enemy country, whether or not the individual's country of origin was an ally of Great Britain. The same rule applied to persons found guilty of an offence under the Military Service Act, 1917. Overall, new Canadians living on the Prairies were the most seriously affected by the War-time Elections Act, with tens of thousands being disenfranchised.These military voters had the ability to vote in an riding that they had previously lived in, or could be assigned by the party chosen by the voter where it would be more useful. Strategic voting, it seems, is not new in Canadian history.
How this strategy was exerted was wrought with ethical and partisan dilemmas,
Cases of election fraud soared during the subsequent election campaign. A soldier suspected of intending to vote Liberal was threatened with being sent immediately to the front. Telegrams and letters from the federal cabinet even specified the number of floaters to be entered on the electoral lists to assure election of a given candidate in a given riding. An officer who feared investigation of the irregularities was told that anyone who failed to hold their tongue would be buried in France within six months. Efforts to exercise "undue influence" on the election resurfaced on a scale previously unheard of. The Sunday preceding the election, in three out of four Protestant churches across the country, pastors and ministers exhorted the people to look on voting for the government in power as a sacred duty, failing which Canada would be disgraced.The Charter spurned even further changes to electoral enfranchisement, with the first 500 federally-appointed judges casting their votes in 1988, following the decision in Muldoon v. Canada,  3 F.C. 628 (T.D.), and were joined by those suffering from a “mental disease,” following the decision in Disability Rights Council v. Canada,  3 F.C. 622 (T.D.). The 1993 amendments to the Canada Elections Act formally removed these exclusions.
Other citizens who were enfranchised by the courts under s. 3 of the Charter include prison inmates (Sauvé v. Canada (Attorney General) in 1993, and Sauvé v. Canada (Chief Electoral Officer) in 2002). Litigation of s. 3 has also found some justifiable limits to enfranchisement. The age restriction was upheld in 2002 in Fitzgerald (Next Friend of) v. Alberta (aff'd ABCA; leave to appeal to SCC refused) as justified under s. 1,
 The objective of the age requirement is similarly clear if one considers that, in the absence of an age requirement, babies meeting the citizenship and residency requirements would be eligible to vote. In drawing the line at age 18, it is clear that the legislature’s objective was to ensure, as much as possible, that those eligible to vote are mature enough to make rational and informed decisions about who should represent them in government. A rational and informed electorate is essential to the integrity of the electoral process, the maintenance of which is “always of pressing and substantial concern in any society that purports to operate in accordance with the tenets of a free and democratic society” (Harvey, supra, at para. 38). ...
 It is a basic fact that children become more mature as they get older, and that 18 year olds, with more years of experience, are more likely to serve as rational and informed voters than younger individuals with less experience...
 This fact was also recognized by McLachlin C.J. in Sauvé in her rejection of the government’s analogy between youth voting restrictions and inmate disenfranchisement in that case. In para. 37 she implied that a youth voting restriction is a legitimate voting regulation because “...Parliament is making a decision based on the experiential situation of all citizens when they are young.”
The practicalities of this decision was explained in an unrelated case, Poshteh v Canada (Citizenship and Immigration), as follows,
 A statutory blanket exemption or exclusion in respect of minors is often a proxy for individual assessments of matters such as maturity, responsibility or mental capacity to make an informed decision, where such individual assessments are impractical. In the case of voting rights, for example, it has been held that setting the voting age at 18 is to ensure, as far as possible, that those eligible to vote are mature enough to make rational and informed decisions about who should represent them in government. It would obviously not be possible to conduct such an assessment on an individual basis for voting purposes. A bright-line age test is therefore a practical way to deal with the matter.Other restrictions that have been justified under s. 1 include the imposition of administrative requirements, such as a proof of identity in Henry v. Canada (Attorney General), based on the 2007 amendments to the Canada Elections Act which introduced these measures to combat voter fraud. Although there was no evidence of systemic electoral fraud before the court, given the secret nature of elections it would be impossible to ever determine the full extent of any fraud. After reviewing the Court's decisions in Figueroa v. Canada (Attorney General) and Reference Re Provincial Electoral Boundaries (Sask.), the British Columbia Court of Appeal in Henry emphasized that restrictions on s. 3 required not deference, but a stringent approach requiring careful examination.
While upholding the identification requirement, the court stated,
In other words, although Canada's history is one of progressive enfranchisement, it is not one of universal enfranchisement. The ability to limit the bundle of rights in s. 3, including the right to vote, can be limited in a free and democratic society.
 Three things follow from these cases. First, s. 3 contains a bundle of rights derived from its explicit words and from its purpose of guaranteeing the rights of citizens to play a meaningful role in the electoral process. The explicit rights are procedural and spelled out in the section. The implicit rights are substantive and may require resort to a broad range of factors to determine. To paraphrase Iacobucci J. in Figueroa, the implicit rights are the conditions under which the right to play a meaningful role in the electoral process are expressed. Infringement of any of the rights constitutes a breach of s. 3.
 It follows from all of this that the s. 3 right to cast a ballot for a candidate in a federal or provincial election is limited only by the specific wording of the section, that is, by citizenship and residence. Any other impediment to the ability of an elector to cast a vote constitutes a facial breach of the section. Where legislation, such as the legislation in question in this case, has the double effect of breaching the rights of some citizens while enhancing the rights of others, the duty of the court is to first isolate the breach and then to determine whether it is justifiable under s. 1. If the impugned legislation also has the effect of enhancing an aspect of the right, it is a factor to take into consideration in the s. 1 analysis.
Because of the geographic nature of our electoral system, courts have struggled with the interpretation with s. 3 of the Charter and residency requirements. Prior to the Charter, the 1970 amendments to the Canada Elections Act introduced a proxy voting system for fishermen, seamen, prospectors and full-time students, who may be absent from their electoral districts on voting days. Persons with physical disabilities were guaranteed the right to vote, and advance polling stations were required to have level access.
Further amendments in 1977 extended the right to vote by proxy to airline crews, lumber and survey teams, and trappers, all professions requiring a high degree of mobility and typically not found in close proximity with an electoral riding. The Saskatchewan Court of Appeal in Storey v. Zazelenchuk dealt with a challenge with residency requirements under s. 3 immediately after the advent of the Charter, and concluded,
 Until 1951 Saskatchewan law required a person to have been resident in the Province for 12 months before being eligible to vote in a provincial election. Ontario, Quebec, and Prince Edward Island still maintain a 12 month residency requirement. In all other provinces, however, the period is now six months. This issue of what is an appropriate period of advance residence is one peculiarly within the competence of the Legislature and, having in every case settled on at least six months, it would be singularly inappropriate for the courts to hold that something less than six months would be more appropriate. The issue here is where to draw the line, so to speak. The Legislature drew it at six months and in the circumstances that cannot be said to be unreasonable. Accordingly the Notice to Vary is dismissed.
In the Reference Re Yukon Election Residency Requirements, the Yukon Territory Court of Appeal reviewed the constitutionality of residency requirements, following the decision in Hedstrom v. Com'r of Yukon Territory et al. finding that s. 18(1)(c) of the Elections Act, 1977 (2nd Sess.) (Y.T.), c. 3 (C.S.Y.T., c. E-1.1), which required a 12-month residency requirement before voting provincially, violated s. 3 of the Charter.
The court concluded there was no Charter violation, as the residency requirement was necessary for the integrity of the electoral process, ensuring that voters are properly informed of the issues, and establishing that voters have a sufficient connection with the region.
 There is a rational basis for installing a residency qualifying system which now exists in every province in Canada. Manifestly, in a federal system, when people move from one province to another, it is reasonable for the provincial authorities to demand that persons taking up residence show some connection with the province or territory before deciding upon local matters...Based on a similar rationale, at the time of the Charter non-resident citizens were prohibited from voting at all in federal elections, a prohibition which had been in place since Confederation. A more limited enfranchisement was introduced in the 1993 amendments to the Canada Elections Act to permit permit temporary non-residents to vote by special ballot. The amendments also required long-term non-residents absent from Canada for more than 5 years to re-establish residence in Canada before voting in federal elections. In 2009, approximately 2.8 million Canadians had been living abroad for one year or more, an estimated 8 per cent of the population.
 The integrity of the electoral process could readily be impaired if transients unfamiliar with local conditions were to vote without complying with some residency qualification. The dangers of corrupt practices in the electoral process are not unknown in democratic society...
 In particular, I accept the analysis that seems to be this, that while the basic function of voting is to elect within a constituency a representative for the future, the vote also has a practical retrospective aspect to it: it often constitutes a means of passing judgment upon the performance of the incumbent representative. Accordingly, in my view, it is not unreasonable to have a newcomer wait a limited period of time to exercise the ballot in order to acquaint himself or herself with the situation prior to one taking up new residence.
 It has all been brought together by Professor Tribe, of Harvard, in his book American Constitutional Law (1978), at p. 761, where it is said:
Although free and open participation in the electoral process lies at the core of democratic institutions, the need to confer the franchise on all who aspire to it is tempered by the recognition that completely unlimited voting could subvert the ideal of popular rule which democracy so ardently embraces. Moreover in deciding who may and who may not vote in its elections, a community takes a crucial step in defining its identity. If nothing else, even though anyone in the world might have some interest at any given election's outcome, a community should be empowered to exclude from its elections persons with no real nexus to the community as such.
 In my view, the nexus referred to by Professor Tribe is created by the residence qualification.[emphasis added]
Over a million Canadians might have been affected by the non-residence limit under the Act. Despite this potential impact, a relatively small number of Canadians actually choose to use this right to vote.
During the 2011 election, only 6,000 votes were recorded from international electors, and in the ten ridings with the highest number of special ballots, the non-resident votes ranged between 0.05-0.2 per cent of all votes. Their impact in this election was negligible.
These residency restrictions remained in place until earlier this year, when the Supreme Court of Canada found them to violate s. 3 of the Charter in Frank v. Canada (Attorney General). The majority distinguished this limitation from the one found in provincial and territorial residential requirements,
 ...This appeal does not concern provincial (or territorial) voting rights, and the situation in the provinces is clearly distinguishable. For instance, a provincial electorate can be significantly smaller and more mobile, a province’s laws do not have comparable extraterritorial reach, and provincial identity is distinct from national identity. Most importantly, there is no provincial equivalent to citizenship. Thus, the fact that Canadian provinces and territories impose residence as a condition of voter eligibility is of little relevance to voting entitlements in federal election law. In provincial and territorial elections, residence may be used to establish the necessary connection between the voter and the province or territory. In the context of federal elections, however, Canadian citizenship is itself evidence of the requisite connection.
[emphasis added]Rather than providing Parliament the ability to draw the line around residence requirements, the majority prohibited any lines around the duration of residence at all. Because this involves a core democratic right, the government's proffered justification was not entitled to deference, and instead required careful and rigorous examination [paras 1, 25 43-44].
The concurring opinion, by Justice Rowe, provided a more qualified approach towards this comparison of other requirements,
 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. For example, in Nunavut, to be eligible to vote in a territorial election, a person must have been resident in that territory for “a consecutive period of at least 12 months” (Nunavut Elections Act, S. Nu. 2002, c. 17, s. 7(1)). The Nunavut Elections Act also provides that “[n]o person is to be considered resident in a home or dwelling that the person occupies seasonally for a period not exceeding a total of 180 days a year, unless at the time of an election the person has no residence in any other place” (Nunavut Elections Act, s. 4(12)). In Ontario, as a general rule, individuals who are absent for more than two years lose their eligibility to vote in a provincial election (Election Act, R.S.O. 1990, c. E. 6, s. 15(1.1)). In Quebec, persons must have been “domiciled” in the province for six months to be eligible to vote in a provincial election (Election Act, R.S.Q., c. E-3.3, s. 1). In my view, the concession by the AGC that the impugned measures infringe s. 3 does not prejudice provincial/territorial governments in arguing that their legislation does not. Nor does it decide the constitutionality of any other federal residence requirement. In any event, different considerations will apply at the s. 1 analysis of any established (or conceded) breach of s. 3 at the provincial level. I would note that in Reference re Yukon Election Residence Requirements (1986), 1 Y.R. 17 (C.A.), in considering the constitutionality of the territory’s residence requirements, the Yukon Territory Court of Appeal considered the small margin by which many constituencies in the territory are won in elections (at para. 15), and the significant transient population passing through the territory (at para. 18), which could significantly impact local interests. Yukon residence requirements were upheld as constitutional in light of these circumstances. As this Court held in Haig, “[t]erritorial exigencies, such as those present in the northern territories, may justify a host of rules particular to a given province, and the possibility of such divergence is woven into the very fabric of Canadian federalism itself” (Haig v. Canada (Chief Electoral Officer), 1993 CanLII 58 (SCC),  2 S.C.R. 995, at p. 1029). Evidence of the circumstances relating to the various residence requirements in each of the provinces and territories may well affect the analysis of any alleged Charter infringement. It seems to me that all the above residence requirements would run afoul of the Charter if we take the view, which I do not, that residence bears no rational connection to electoral fairness and can never be the basis for limiting the right to vote. While their constitutionality awaits consideration another day (should they be challenged), the approach adopted in this case will surely be relevant. [emphasis added]Even though between 1982-1993 a complete prohibition was in place for non-resident citizens to vote, the majority justified this extension to all non-residents without a time limitation on the basis of progressive enfranchisement.
The dissent expressed a very different understanding of this interpretation, and what it might mean for our electoral system,
 In 1993, Parliament extended voting rights to a significant number of Canadians living abroad, including all citizens who have been absent from Canada for less than five consecutive years. But it left in place long-standing statutory restrictions which precluded from voting most citizens who have lived outside of Canada for five consecutive years or more and who are not otherwise eligible to vote under specific exemptions, such as public service employees and their families. This appeal requires us to consider the constitutionality of those restrictions — specifically, whether the prohibition on long-term non-resident voting is a reasonable limit on the appellants’ democratic right to vote under s. 3 of Canadian Charter of Rights and Freedoms, or whether s. 3 requires that all citizens, regardless of how long they have lived abroad, or even if they have never set foot in Canada, be permitted to cast a ballot in federal (and, for that matter, provincial) elections.
 Moreover, and contrary to the seemingly absolute quality of the majority’s understanding of s. 3’s guarantee, such legislative specification is not only necessary, but uncontroversial. Nobody suggests that s. 3 entitles three-year-old Canadian citizens to vote. Similarly, the Canada Elections Act, S.C. 2000, c. 9, withholds the vote from Canadian citizens who have never lived in Canada. And yet, and as the appellants concede, their logic — and, we add, the logic of the majority reasons in this appeal — would necessarily invalidate that restriction as well, opening the vote to persons who have never before so much as set foot in Canada. Far from an example of “progressive enfranchisement” (majority reasons, at paras. 2 and 62), we see this development as regressive, undermining the longstanding and entirely salutary practice in Westminster parliamentary democracies of privileging local connections in deciding who may elect local representatives. In any event, “progressive” or not, the impugned limit on the right to vote is reasonable. We would therefore dismiss the appeal. ...  ... the Actcontains a range of restrictions on voting which, while not challenged here are no less the product of principled and unavoidably philosophical reasoning about the democratic franchise than is the long-term non-resident restriction. In particular, the Actwithholds the vote from Canadian citizens who have never before lived in Canada. Again, Parliament, in shaping the boundaries of the s. 3 right, took the view that a person who was not born in Canada, has never lived in Canada, and may never intend to live in Canada does not have an unconditional right to vote. But of course, the logical implication of the majority’s argument that “the Chartertethers voting rights to citizenship, and citizenship alone” (para. 29) is that this restriction is unjustifiable and therefore unconstitutional — meaning that Parliament cannot prohibit a citizen who has never set foot in Canada, and never will, from voting in Canadian elections (transcript, at pp. 6 and 25). In our view, such a state of affairs, which would represent a radical judicial expansion of voting rights of a sort that Parliament has clearly deemed undesirable, inevitably follows from the majority’s decision on this appeal.
[emphasis added]Central to the dissent was the impact on Canada's “first-past-the-post” or “the single member plurality system,” which has essentially been unchanged since Confederation.
Until the Canada Election Act in 1960, very strict residence requirements were in place for federal elections. The Dominion Elections Act, 1920 required 12 months residence in Canada to vote, and residence within an electoral district for at least two months before the writ was issued, ensuring a strong connection between an elector and the district.
Section 6 of the Act currently emphasizes the polling division and the notion of "ordinarily resident." The place of ordinary residence is further defined in section 8, as a dwelling place, including one which a person intends to return to once away, and includes the last place of ordinary residence for persons who reside outside of Canada. This section also allows for temporary residences, shelters, hostels, and other institutions that provide services to individuals who do not have typical residents, and section 9 allows for an election officer to make a determination with "reference to all the facts of the case."
These non-resident citizens enfranchised by the Court, some who have never even visited Canada, would be voting for one Member of Parliament in a defined electoral district to represent the residents that live in that riding in Parliament, but would be doing so without any direct connection to that riding. How this would practically occur was never truly explained by the majority. We might see electoral officers making a determination of a polling determination based on the ancestral home of a distant progenitor, without any direct connection to the voter at all.
The majority made reference to a globalized economy [para 39], and the ability of non-resident citizens to maintain a connection to Canada through social media and the Internet. [para 69]. The absence of actual electoral fraud, or the ability of non-resident citizens to influence elections, failed to provide a pressing and substantial objective for the majority, who characterized these measures as based on electoral fairness [para 55, 58].
The dissent highlighted this was more than fairness than it was a necessary function of our current democratic system,
 Indeed, the regionally based composition of the House of Commons features prominently in our jurisprudence on the redrawing of boundaries, which permits “geography, demography and communities of interest” to be considered in determining constituency boundaries, even where such considerations may result in otherwise inequitable voting power disparities... Limiting long-term non-resident voting thus ensures that the electors residing in a particular constituency, who share a community of interests that is typically derived from (at least in part) geographical proximity, retain the power to decide for themselves who would best advance those shared interests on their behalf in the House of Commons. It follows that the appellants’ and the majority’s (at para. 69) insistence that connections to Canada can be maintained via, for example, online news websites, misses the point of the 1993 amendments: connections to particular communities are not so easily maintained. [emphasis added; citations omitted]This creates a democratic system where citizens of Canada, and their descendants who may never visit or even know of Canada first-hand, would have a direct voice in our Parliament. These non-residents may be subject to influence or encouragement from foreign governments about their electoral choices.
In a worst case scenario, a dictatorial state would determine how these non-resident citizens would cast their vote. The foreign policy implications of allowing our democracy to be captive in this way seems like extremely poor policy. Rather than acting as ambassadors for Canadian values, as suggested by the majority [para 80], they could operate as ambassadors for something more destructive. Unfortunately, all that such electors would need is a single election, after which they could promote greater statutory reforms that would hinder any subsequent remedial actions.
Although evidence of a scientific nature may not be required to justify limits on s. 3 rights [paras 59, 64], the majority appeared to have greatest difficulty with vague, symbolic and abstract objectives for restrictions [paras 49-54]. Foreign interference in Canada's elections are considered "very likely" by Canada's security establishment, though this information was never before the Court.
The Communications Security Establishment's 2019 Update: Cyber Threats to Canada's Democratic Process report states that foreign cyber threat activity has more than tripled since 2015. The social media and Internet sources lauded by the majority are increasingly filled more with misinformation about political choices and policy options. Voters left to online information alone for political choices are very likely to be misinformed. These cyber threats attempt to affect voter eligibility, including the theft of voter databases. Their effects sow doubt about the very validity of an election, even when failing to change an election result.
Parliament has been so concerned about these activities that it passed the Elections Modernization Act, receiving Royal Assent on Dec. 13, 2018, to prevent foreign entities from using funds for partisan advertising and political activities. In this context, a legislative requirement ensuring some temporal connection to Canada for voter eligibility appears far more pressing and substantial than mere voter fairness.
A residency requirement over a five year period has the additional benefit of ensuring voter identification, which would be validated every time the citizen enters or leaves Canada. The justification for residence in therefore no different in the modern context than the one enunciated in Henry.
While the majority described these benefits of residence as speculative in nature [para 78], the dissent characterized this approach as rendering s. 1 useless as being unable to impose any limits on s. 3 rights,
 In light of these considerations, we conclude that the Attorney General has demonstrated that the non-resident voting restriction represents a reasonable limit on the s. 3 right, demonstrably justifiable in a free and democratic society. 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. The limit is minimally impairing because, on balance, a five-year time period falls within the range of reasonable options that were open to Parliament, and it is not this Court’s prerogative, let alone within this Court’s expertise, to second-guess the precise location at which Parliament chose to draw the line. And, 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 — any Canadian can immediately retain the right to vote upon re-establishing residence in Canada.One of the most significant factors not properly weighed by the majority are the other voters who may use a special ballot under Part 11 of the Canada Elections Act, which includes members of the Canadian Forces, employees in the federal or provincial public administration or service posted outside the country, a citizen employed by an international organization supported by Canada and posted outside the country, and an incarcerated elector.
Unlike these other electors, the non-resident citizens absent for more than five consecutive years has made an individual choice to live outside of Canada. They also have the choice to return to Canada on their own accord, prior to an election, in order to be enfranchised again for the purposes of s. 3 of the Charter. The negligible state control on these citizens, and the minimal requirements ability to meet the legislative requirements, would appear to meet the proportionality analysis under s. 1.
The current federal government was elected on an unfulfilled promise of electoral reform. It might be that in some other system, one which uses some form of mixed-member proportional representation system, a strong non-resident citizen voice might necessarily be included. In our current Westminster model some connection with geography remains a necessary element for political representation. The Court's decision in Frank extends the notion of enfranchisement far beyond reasonable expectations.
Although voter turnout in federal elections hit an all-time low of 58.8% in 2008, it has risen since to 68.3% in 2015. This decision in Frank is unlikely to independently result in any significant increases in non-resident citizens voting in the 2019 election. However, the decision remains an important reminder this Canada Day on the importance of voting to citizenship and its connection to our most central democratic rights under the Charter, especially at a time when we know definitively that there are foreign influences who seek to influence those democratic choices.