Frank v. Canada
(Attorney General), 2014 ONCA 485:
The Attorney General’s stay motion
[11] I note that
Elections Canada was not served with this motion. In my view, it should have
been served as it would be immediately and directly impacted by the effect of a
stay. I allowed the motion to proceed as it is apparent from correspondence in
the record that Elections Canada is fully aware of this motion and its legal
counsel has outlined the steps Elections Canada could take in the event a stay
is granted.
[12] It is
common ground that to obtain a stay the Attorney General must satisfy the
familiar three-part test and show:
1. that there is a
serious question to be determined;
2. that irreparable
harm to the public interest will be suffered should the stay not be granted;
and
3. that the balance
of convenience and public-interest considerations favor a stay.
Serious question to be tried
[13] This appeal
will almost certainly be decided on the basis of the s. 1 analysis. I share the
application judge’s concern that the objectives identified by the Attorney
General as being sufficient to justify limiting the right to vote are broad,
symbolic and rhetorical. In oral argument, counsel insisted that Parliament’s
central concern was election fairness. It is not clear to me how denying a
citizen the right to vote can be justified on the basis of electoral fairness.
The objectives identified by the Attorney General obscure what appears to me to
be the real issue, namely, whether the five year limit on non-resident voting
can be justified on the basis that it is necessary to sustain our
geographically determined, constituency-based system of representation. As the
Supreme Court of Canada observed in Sauvé v. Canada (Chief Electoral Officer),
[2002] 3 S.C.R. 519, the prisoner voting case, “[v]ague and symbolic
objectives” render proportionality analysis hollow. However, I do not say that the Attorney
General has failed to show that the appeal is arguable. While the application
judge gave full and fair consideration of the s. 1 issue, there does appear to
be an argument to be made on the other side.
Does the Attorney General have a presumptive or automatic
right to a stay?
[14] The
Attorney General submits that as guardian of the public interest it has
something approaching an automatic right to a stay due to a presumption of
irreparable harm and that the balance of convenience favours maintaining the
“status quo”. I am unable to accept that proposition. It is inconsistent with
what occurred in the prisoner voting litigation where a stay was refused
pending appeal: Sauvé v. Canada (Chief Electoral Officer), [1997] 3 F.C. 628,
aff’d. [1997] 3 F.C. 643 (C.A.), leave to appeal dismissed [1997] S.C.C.A. No.
264. It is also inconsistent with the general principle that the decision to
grant or withhold a stay lies in the discretion of the court.
[15] The
Attorney General relies on the following passage from Bedford v. Canada
(Attorney General), 2010 ONCA 814, 330 D.L.R. (4th) 162, at para 13:
…I must determine whether a stay should be granted in a
context where (1) there is a prima facie right of the government to a full
review of the first-level decision; (2) the government has a presumption of
irreparable harm if the judgment is not stayed pending that review; and (3) the
responding parties must demonstrate that suspension of the legislation would
provide a public benefit to tip the public interest component of the balance of
convenience in their favour.
[16] In my view,
that passage must be read in its proper context and when so read, it is
apparent that a court will only grant a stay at the suit of the Attorney
General where it is satisfied, after careful review of the facts and
circumstances of the case, that the public interest and the interests of
justice warrant a stay. In that case, the government filed a substantial volume
of evidence to demonstrate the very real and tangible harm that would result if
the matter of prostitution were left completely unregulated. It is clear from
reading the reasons as a whole that Rosenberg J.A. only granted a stay in
because, after reviewing and weighing that body of evidence, he was (at para.
72) “satisfied that the moving party ha[d] satisfied irreparable harm test”.
[17] It is the
case that very often, the public interest in the orderly administration of the
law will tilt the balance of convenience in favour of maintaining impugned
legislation pending the final determination of its validity on appeal: See, for
example RJR-MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311 at p. 346
In the case of a public authority, the onus of demonstrating
irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of
the public authority and partly a function of the action sought to be
enjoined. The test will nearly always be
satisfied simply upon proof that the authority is charged with the duty of
promoting or protecting the public interest and upon some indication that the
impugned legislation, regulation, or activity was undertaken pursuant to that
responsibility. Once these minimal
requirements have been met, the court should in most cases assume that irreparable
harm to the public interest would result from the restraint of that action.
[18] However, I
cannot agree with the Attorney General that there is a presumption approaching
an automatic right to a stay in every case where a court of first instance has
ruled legislation to be unconstitutional. As Lamer J. also held in
RJR-MacDonald, at p. 343, that “the government does not have a monopoly on the
public interest.” See also Bedford, at para. 73: “The Attorney General does not
have a monopoly on the public interest, and it is open to both parties to rely
upon the considerations of public interest, including the concerns of
identifiable groups.”
[19] In my view,
it is necessary to carefully review the particular facts and circumstances of
this case in order to determine whether or not a stay is warranted.
Irreparable harm
[20] Turning to
the specifics of this case, the Attorney General argues that irreparable harm
would ensue if a close election were decided by the single vote of a non-resident
voter ultimately found on appeal not to have the right to vote. I agree that
such a scenario would amount to irreparable harm.
[21] However,
elections decided by a very few votes are rare and in my view, the prospect of
irreparable harm on that account is fairly remote.
[22] More
important, the class of non-resident voters affected by the judgment face
precisely the same risk of irreparable harm. Once the election has passed, the
constitutional right to vote in that election will be lost forever. If the
election is decided by one or a very few votes and if the judgment is affirmed
on appeal, the stay requested by the Attorney General will have improperly
disenfranchised voters whose vote could have changed the result of the
election. That would constitute irreparable harm to the non-resident voters and
to the public.
[23] I conclude
that any risk if irreparable harm claimed by the Attorney General is matched by
the same risk of irreparable harm to non-resident voters.
[24] Nor do I
see merit in the argument that Members of Parliament elected in an election
governed by the judgment would somehow be different in any material way from
those previously elected. All Members of Parliament are elected according to
the law as it stands at the time of the election. There is no air of reality to
the claim that Members of Parliament elected at by-election under a changed or
amended law would be seen as different from their parliamentary colleagues
elected under the earlier law.
[25] In my view,
the consideration of irreparable harm is neutral and does not favour granting a
stay.
Balance of convenience
[26] In my view,
the balance of convenience in this case favours refusal of a stay. I reach that
conclusion for the following reasons.
[27] First, this
is not the typical case where a complex statutory scheme or administrative
apparatus has to be dismantled or constructed in order to give effect to the
trial judgment. In such cases, the balance of convenience will typically favour
a stay to avoid the cost and disruption that would flow from implementing a new
regime based upon a trial judgment that may need to be undone in the event of a
successful appeal.
[28] In the
present case, Elections Canada immediately took the minimal administrative
steps required to permit non-resident citizens to vote in accordance with the
decision of the application judge. If a stay is granted, Elections Canada will
have to undo what it has already done. It is clear from the record that it may
not be possible for Elections Canada to determine in time for the by-elections
which non-resident voters who registered after the judgment would have been
eligible before the judgment. The terms of the stay requested by the Attorney
General recognize that difficulty and ask for a qualified stay that applies
“unless Elections Canada is unable to determine” if those who registered meet
the pre-judgment requirements. In addition, at least one non-resident has cast
her ballot. To grant a stay in this case would require Elections Canada to
rescind the registrations of up to 13
non-resident electors and claw back the vote of a citizen who may well in the
end have the right to cast her ballot. Granting a stay in this case would not
avoid the cost and inconvenience of prematurely erecting or dismantling a
scheme – it would do the opposite.
[29] Second,
this is not a case like Bedford where the trial judgment creates a legislative
void in an area of activity that needs to be regulated in the public interest.
Allowing the judgment to operate does not create a void or gap in Canada’s
election law. Nor does the judgment radically alter the class of those eligible
to vote. The Act already grants many non-resident citizens the right to vote.
The judgment under appeal merely extends the right to a broader class of
non-resident citizens.
[30] As counsel
for the applicants pointed out, it is highly unlikely that the judgment will
produce a floodgate of votes from disinterested and disengaged non-resident
Canadians. We know that the number of newly qualified non-resident voters who
had registered as of June 16 is 13 or fewer. The non-resident must be both
determined and informed. He or she must first register and then obtain a
ballot. The non-resident voter cannot vote by simply marking an X beside one of
the listed candidates but must complete a special ballot that requires the
voter to know and write in the name of an actual candidate.
[31] I conclude
that the balance of convenience does not favour granting a stay in this case.
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