Expat voting: Court denies Ottawa's fight for 5-year rule for voters abroad

Canadians living abroad, regardless of when they left the country, will be able to cast ballots in next week's federal byelections in Ontario and Alberta.

An Ontario Court of Appeal judge made the ruling today, denying the federal government's request for a stay of a lower court ruling that would have extended voting rights to anyone who had lived outside the country for more than five years.

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Monday's decision comes just days before voters were to head to the polls on June 30 for four byelections — two in Alberta, two in Ontario.

To grant a stay in this case would … claw back the vote of a citizen who may well in the end have the right to cast her ballot.— Justice Robert Sharpe, Court of Appeal for Ontario

It paves the way for about 1.4 million longtime Canadian expats to vote alongside others who moved abroad more recently.

An amendment to the Canada Elections Act passed in 1993 barred citizens abroad from voting in Canadian elections if they were out of the country for longer than five years.

But last month, Ontario Superior Court Justice Michael Penny found the five-year rule arbitrary and unconstitutional.

"The [government] essentially argues that allowing non-residents to vote is unfair to resident Canadians because resident Canadians live here and are, on a day-to-day basis, subject to Canada's laws and live with the consequences of Parliament's decisions," Penny wrote in the May 2 decision.

"I do not find this argument persuasive."

'Irreparable harm' scenario dismissed

In Monday's ruling denying the federal government's request of a stay, Justice Robert Sharpe wrote that while there was "an arguable appeal" from the Attorney General of Canada, "the balance of convenience weights in favour of refusing a stay."

Sharpe dismissed the government's argument that it could cause "irreparable harm" if a close election came down to the single vote of a non-resident who, it might turn out, was ineligible to vote. But such a scenario would be "fairly remote," Sharpe said.

• Listen: CBC's Blair Sanderson interviews ex-pat voter Gillian Frank
• Read the full Court of Appeal for Ontario judgment here
• Federal byelections set for June 30

He also reasoned that Elections Canada had already taken administrative steps to allow citizens abroad to vote after the lower court ruling, and it was counterproductive to "undo what [Elections Canada] has already done."

Only 13 Canadian ex-pats have so far registered to vote since the May decision.

Even so, Sharpe wrote today: "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 citizens who may well in the end have the right to cast their ballot."

A total of 131 voters abroad have registered for the four byelections scheduled for June 30.