Long-term expats turning to Supreme Court over voting ban amid strong support

Two Canadians stripped of the right to vote because of their lengthy stay abroad are hoping the Supreme Court of Canada will hear the case, their lawyer said Wednesday.

TORONTO — Two Canadians stripped of the right to vote because of their lengthy stay abroad are hoping the Supreme Court of Canada will hear the case, their lawyer said Wednesday.

Shaun O’Brien said last week’s split Appeal Court decision affirming the voting ban prompted an outpouring of support.

“There’s been a strong response,” O’Brien said in an interview.

“People (have been) reaching out to us — expats living around the world — who are very disappointed and dismayed by the decision, and who are urging us to move forward and who are offering their support.”

Among those unhappy with losing their right to vote is veteran Canadian actor Donald Sutherland, an Officer of the Order of Canada, who wears his Canadian citizenship on his sleeve.

In an opinion piece published in the Globe and Mail this week, Sutherland, 80, railed at the Conservative government for disenfranchising him and his wife because they mostly live in the U.S. even though they stay in Canada whenever they can.

“This Canadian government…has furiously promoted a law that denies its citizens around the world the right to vote,” Sutherland, most recently a star of the “Hunger Games,” said in his article.

“Is it because they’re afraid we’ll vote to return to a government that will once again represent the values that the rest of the world looked up to us for?”

Under changes to the Canada Elections Act dating to 1993, who live abroad for more than five years lose their right to vote. However, it was only in 2007 under Prime Minister’s Stephen Harper’s government that strict enforcement began and short-term visits to Canada were no longer deemed sufficient to reset the five-year clock.

Two Canadian citizens living in the United States — Gillian Frank and Jamie Duong — argued the five-year rule was arbitrary and unreasonable.

In May last year, Superior Court Justice Michael Penny threw out the ban as unconstitutional, noting that mass murderers can vote but long-term expats who care deeply about the country cannot.

However, the Ontario Court of Appeal overturned Penny’s decision and affirmed the law, estimated to disenfranchise more than one million expats.

Writing for the court, Justice George Strathy said allowing non-residents to vote would erode Canada’s “social contract” given that they, unlike residents, don’t have to live with laws enacted by elected politicians. Justice John Laskin disagreed with Strathy’s position.

“We had a very strong decision at the first level, and then, at the Court of Appeal, it was two to one with an extremely strong dissent from a very experienced judge,” O’Brien said. “That gives us a very strong basis to move forward.”

The request to the Supreme Court to hear the case — which will include showing that the case is of national importance — must be made by the end of September. Regardless, there will be no decision before the next federal election — which will happen Oct. 19 at the latest.

“It’s very disappointing to my clients in terms of this election but they’re still very passionate about pursuing it on an ongoing basis beyond this election,” O’Brien said.

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