The Ontario Court of Appeal has reserved its decision on a federal government request asking for a stay of a lower court ruling giving Canadian citizens living abroad the right to vote, no matter how long they've lived outside Canada.
- Listen: CBC's Blair Sanderson interviews ex-pat voter Gillian Frank
- Voting rights restored to Canadians living abroad long-term
- Election reform bill an affront to democracy, Marc Mayrand says
An amendment to the Canada Elections Act passed in 1993 allowed expatriates to vote in Canadian elections, but only if they had been out of the country for less than five years.
On May 2, Ontario Superior Court Justice Michael Penny found the five-year limitation violates section 3 of the Charter of Rights and Freedoms, which constitutionally guarantees all Canadian citizens the democratic right to vote.
The request for a stay was heard Friday morning at the Ontario Court of Appeal in Toronto.
The federal government didn't file notice for an appeal and a stay until a month after Penny's ruling.
The timing is critical because four byelections are occurring on June 30 and Elections Canada has already accepted applications from people living abroad who want to cast a ballot in two Ontario ridings 10 days from now.
Most ex-pats vote in advance by mail.
Shaun O'Brien, the lawyer who represented two ex-pats in the lower court, said she's not sure why the government is challenging the ruling.
''They think it's unfair to allow people outside the country to vote in that it impacts people inside the country who live here," she said, reached by phone in Toronto.
1.4 million Canadian citizens affected
In the lower court case, an elections expert estimated there are 1.4 million Canadian citizens who have lived abroad for more than five years.
"We're just saying five years is an arbitrary limit," O'Brien said.
Since the ruling, she said Elections Canada has told her only 12 people have applied to vote in the Toronto byelection in Trinity-Spadina and one person has applied to vote in Scarborough-Agincourt, also a Toronto riding.
No ex-pats have applied to vote in the Alberta ridings of Macleod and Fort McMurray-Athabasca where byelections will be held.
Kathryn Jones, who has lived in Princeton, N.J. for more than five years, has already voted by mail in Trinity-Spadina, the neighbourhood where she grew up. She isn't sure if her vote will be invalidated if a stay of the ruling is granted.
"To me, this is the Canadian government spending taxpayer money on an appeal that has granted voting rights, the most basic democratic right you can have, to what I think are 1.4 million citizens, and here is the government fighting to take that right away, " Jones told CBC Radio's Laura Lynch.
Jones conceded to Lynch she doesn't pay taxes in Canada, but pointed out some students and stay-at-home moms in Canada don't pay taxes either.
"We certainly don’t tell people who have higher incomes and pay more taxes that they get extra votes, so to me it seems clear we don’t tie any other constitutional right to taxation, so why would we all of a sudden tie the right to vote to taxation?," Jones said, adding she hopes to return to Canada when the right job turns up.
"Is there a substantial change in the ex-pat Canadian citizen that takes place after five years and one day?" O'Brien asked in court.
Applicants visit often, plan to return
The two applicants in the lower court case are Gillian Frank and Jamie Duong, both academics living in the U.S.
In their court documents, they said they visit Canada often and intend to return. Each said they follow Canadian politics closely and were upset when they found out they couldn't vote in the 2011 general election because they had been living outside Canada for more than five years.
"If you go through the trouble of deciding to vote from abroad, applying for the package and getting it, and getting your vote in on time — that itself is evidence of a connection [to Canada]," O'Brien said.
She added Elections Canada has been allowing ex-pats who've been away for more than five years to vote if they show up at a poll on election day and have proper ID.
In the last federal election, 6,000 "international voters" cast ballots, according to Elections Canada, along with 26,000 Canadian Forces members living abroad. About 15,000 prisoners also cast ballots.