T-2393-92
Graham Haig, John Doe and Jane Doe
(Applicants)
v .
Jean-Pierre Kingsley (Respondent)
INDEXED AS: HAIG V. CANADA (CHIEF ELECTORAL OFFICER)
(Ti'.)
Trial Division, Joyal J.—Ottawa, October 14 and 19,
1992.
Constitutional law — Charter of Rights — Democratic
rights — Right to vote — Referendum on constitutional reform
based on Charlottetown Accord held under federal Referendum
Act rules — Quebec conducting separate referendum under
provincial law, including six-month residency requirement —
Former Ontario resident unable to vote as moved to Quebec
two months before referendum — Applicant's position that
combined effect of federal and Quebec referendum rules
depriving him of right to vote in referendum in violation rf
Charter rights — Application dismissed — No violation of
freedom of expression as right to express views on subject mat
ter retained — Charter, s. 3 right to vote limited to voting at
federal or provincial elections, not extending to referenda —
Constitutionality of electoral residency requirements well
established — Mobility rights not infringed as residency
requirements not discriminatory within meaning of Charter, s.
6(3)(a) — Charter, s. 15 equality rights not infringed as
alleged discrimination not on ground analogous to enumerated
grounds — Public authorities cannot be held accountable for
consequences (on right to vote) of particular course of conduct
(moving from one province to another) undertaken by suppli
cant before Court.
Elections — Referendum on constitutional reform based on
Charlottetown Accord — Referendum held under federal Ref
erendum Act rules — Quebec holding separate referendum
under provincial law, including six-month residency require
ment — Former Ontario resident unable to vote as moved to
Quebec two months before referendum — No violation of
Charter, s. 3 (right to vote), s. 6 (mobility rights) or s. IS
(equality rights) — Application for mandamus requiring enu
meration, declarations having effect of permitting applicants to
vote dismissed.
Judicial review — Equitable remedies — Declarations —
Referendum on constitutional reform held under federal Refer
endum Act except in Quebec, where provincial referendum held
subject to provincial law including six-month residency
requirement — Former Ontario resident unable to vote as
moved to Quebec two months before referendum — Seeking
orders of mandamus, declarations having effect of permitting
applicants to vote — Jurisdictional issues: whether Federal
Court could determine, under Federal Court Act, s. 18, issue of
constitutional validity of federal statutes; and whether Chief
Electoral Officer federal board, commission or tribunal
against which s. 18 relief available taken under advisement,
application denied on merits.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Elections Act, R.S.C., 1985, c. E-2.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 2(b), 3, 6, 15(1).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 17 (as am. by
S.C. 1990, c. 8, s. 3), 18 (as am. idem, s. 4), 18.1 (as
enacted idem, s. 5), 48.
Federal Court Rules, C.R.C., c. 663.
Proclamation Directing a Referendum Relating to the
Constitution of Canada, SI/92-180.
Referendum Act, S.C. 1992, c. 30, s. 3.
CASES JUDICIALLY CONSIDERED
APPLIED:
Allman et al. v. Commissioner of the Northwest Territo
ries (1983), 50 A.R. 161; 8 D.L.R. (4th) 230; [1984]
N.W.T.R. 65 (C.A.); Kretowicz et al. v. Minister of
Employment and Immigration (1987), 77 N.R. 38
(F.C.A.).
APPLICATION under section 18 of the Federal
Court Act for various orders which would have the
effect of permitting the applicants to vote in the
October 26, 1992 referendum on the Constitution.
Application dismissed.
COUNSEL:
Philippa E. Lawson for the applicants.
Nicol J. Schultz and Jacques Girard for respon
dent.
SOLICITORS:
Public Interest Advocacy Centre, Ottawa, for
applicants.
Fraser & Beatty, Ottawa, for respondent.
The following are the reasons for order rendered in
English by
JOYAL J.: The applicant, Graham Haig, on his
behalf and on behalf of others, moves this Court
under section 18 of the Federal Court Act [R.S.C.,
1985, c. F-7 (as am. by S.C. 1990, c. 8, s.4)] for vari
ous alternative orders which would have the effect of
permitting him to vote in the forthcoming referen
dum scheduled for October 26, 1992.
The particular situation in which the applicant
finds himself is the result of his having moved, early
in August of this year, from his ordinary place of res
idence in Ontario to a new place of residence in the
province of Quebec.
Being no longer an Ontario resident, the applicant
is not qualified to vote in Ontario under the provi
sions of the Canada Elections Act [R.S.C., 1985, c.
E-2]. At the same time, however, he is not qualified
in the separate referendum in the province of Quebec,
whose electoral laws, as in all Canadian provinces,
impose a six-month residency rule.
The applicant contends that this double proscrip
tion creates a breach of his Charter rights, under sec
tions 2, 3, 6 and 15 of the Canadian Charter of
Rights and Freedoms [being , Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.) [R.S.C., 1985, Appendix II, No. 44]]. The
applicant argues that he is entitled to redress from
this Court by way of the following remedies:
1. A declaration that the term "elector of a province"
as used in section 3 of the Referendum Act [S.C.
1992, c. 30] includes a resident who was ordinarily
resident of a province at any time in the six-month
period prior to the referendum.
2. A mandamus order requiring that arrangements be
made to have the applicant and others enumerated.
3. A declaration that the applicant's Charter rights are
otherwise violated.
4. A declaration that Order-in-Council P.C. 1992-
2045 [Proclamation Directing a Referendum Relating
to the Constitution of Canada, SI/92-180] triggering
off the referendum vote is unconstitutional in so far
as it contravenes paragraph 2(b) and subsection 15(1)
of the Charter.
The application was filed in this Court on Septem-
ber 30, 1992. It named Her Majesty the Queen and
the Chief Electoral Officer as respondents. On Octo-
ber 5, 1992 counsel for Her Majesty the Queen
moved the Court to strike her as a respondent on the
grounds that the Court had no jurisdiction under sec
tion 18.1 [as enacted by S.C. 1990, c. 8, s. 5] of the
Federal Court Act to grant the remedies requested.
The Crown's motion was heard before Mr. Justice
Denault on October 7, 1992 and on October 9, 1992
he granted the Crown's motion and issued considered
reasons for his order.
A reading of these reasons might have led many to
conclude that the applicant had run into rough ground
and was facing a situation in which this Court had no
jurisdiction to hear the application under section 18.1
of the Federal Court Act. It might have been
expected, in spite of the time constraints, that the
applicant might have taken the more appropriate pro
cedures set out in section 17 [as am. by S.C. 1990, c.
8, s. 3] and section 48 of the statute.
Concurrently, section 57 [as am. idem, s. 19] of the
statute, in dealing with constitutional challenges,
required that a ten-day notice thereof be sent to the
Attorney General of Canada and of each if its prov
inces. That notice expired on October 11, 1992 and
accordingly, the hearing of the motion on its merits
could not be scheduled for an earlier date.
A date for that hearing was set for October 13,
1992. On the previous day, the applicant moved to
add the Attorney General of Canada as a named
respondent. At the October 13 hearing, the Court was
again faced with jurisdictional issues. Counsel for the
Attorney General in an institutional capacity and not
as party respondent, took the view that the issue
before the Court was in essence an attack on the con
stitutional validity of the federal statutes and by rea
son of the Federal Court Act itself, not by reason of
its Rules [Federal Court Rules, C.R.C., c. 663], the
Court lacked jurisdiction to determine the issue under
section 18. Counsel further argued that judicial
review under section 18 was only available against
federal boards, commissions and tribunals, which
was not the case before the Court.
In the circumstances, I decided, in spite of the mes
sage which might be gleaned from Mr. Justice
Denault's order of October 9, 1992, to take the juris
dictional issue under advisement and to permit coun
sel for the applicant to argue the merits of her case, to
which counsel for the Chief Electoral Officer would
necessarily respond.
If I have gone to some length in reciting the vari
ous processes to which the applicant has had to sub
mit, it is perhaps to explain that no issue is ever as
simple as it might otherwise appear. The Court is
well aware of the time restraints and of the complexi
ties which the applicant's constitutional challenge
provokes in the application of our judicial rules,
which have never been known for their simplicity.
The applicant's position, however, is that he is caught
between two stools, that under the Charter he has a
right to vote in the forthcoming referendum and that
someone, somewhere, will give him the means to do
so. In his eyes, as well as in the eyes of others, that is
the simple issue and the processes to obtain his rem
edy are of no concern to him.
It is difficult for a Court, in that kind of situation,
to vulgarize the process. It is even more difficult, as
in the case before me, to dispense with what appears
to some as purely technical aspects of the case and go
directly to the substantive issues raised. Yet, these so-
called technical aspects are rules of law to which a
Court owes as much respect as it does for the prayer
of an applicant who feels that his rights as a citizen
have been breached and petitions the Court for
redress.
Leaving that aside for the moment, I should make
some findings on the detailed and cogent arguments
raised by counsel for the applicant and counsel for
the Chief Electoral Officer. I speak, of course, of
their arguments on the merits. If I should not traverse
each and every point raised, it is by reason of neces
sity in coming to terms quickly with the issues. In
this respect, the parties will be aware that the Court is
as conscious of and as responsive to the time con
straints facing the applicant.
The specific right which the applicant alleges has
been breached is found in section 3 of the Charter.
There is where the right to vote is enshrined. Section
3 reads as follows:
3. Every citizen of Canada has a 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.
The French version tells us that:
3. Tout citoyen canadien a le droit de vote et est éligible aux
élections législatives fédérales ou provinciales.
It is evident that a citizen's right to vote is circum
scribed. It is only entrenched when elections to the
federal Parliament or to legislative assemblies are
held. The section does not on its face, guarantee a
right to vote in any other instance when a citizen is
invited to cast a ballot.
The French version appears at first blush to pro
vide an unfettered right to vote, yet I should find that
on a proper reading of it, the expressions "droit de
vote ... aux élections législatives fédérales ou
provinciales" are conjunctive and therefore impose
the same limitation as in the English text.
This is probably why counsel for the applicant
stressed paragraph 2(b) and sections 6 and 15 in sup
port of the alleged breach. Nevertheless, I should
think that when the Charter provides generic expres
sions of certain freedoms, including freedom of
expression, or again provides for equality rights
under subsection 15(1), regard should be had to more
specific kinds of rights, namely the right to vote, as
found in section 3. As observed before, this right to
vote, as enshrined in the Charter, is limited to voting
at federal or provincial elections.
I should also note that the citizens of Quebec are
not allowed to vote in the Canadian referendum
established by the Referendum Proclamation.
Whether or not they should have been included is, in
my view, a policy consideration which does not, of
itself, raise a justiciable issue. As the applicant is not,
as admitted, ordinarily resident in any of the prov
inces or territories enumerated in the Proclamation,
he has, on the face of it, no right to vote in the Cana-
dian referendum.
That the applicant is denied the right to vote in the
Quebec referendum, because of a residency rule, a
rule which, as we shall see, has been found to be
legitimate under Charter guarantees, is to him and
others as well a cause for concern. It is a predica
ment, however, which is often found when the politi
cal structure of a community is based on a federal
system where both levels of authority enjoy their
respective and exclusive jurisdictions. In that respect,
I should observe that long before the Referendum
Proclamation, the Quebec legislature had provided in
Bill 150, in force on June 20, 1991, for a Quebec ref
erendum to be held no later than October 26 of this
year. Presumably, it is by way of mutual accommo
dation that both referendums are being held on the
same day.
One would conclude therefore that the applicant is
beyond the pale of the applicable federal law and his
recourse, if any, might be to Quebec- courts. Even
there, however, that recourse might be of doubtful
assistance to the applicant. Residency requirements
were before the Northwest Territories Court of
Appeal in the case of Allman et al. v. Commissioner
of the Northwest Territories (1983), 50 A.R. 161,
where the Territories government had proclaimed a
plebiscite which, I believe, is the more proper term
for the referendum and which imposed a three-year
residency rule to qualify to vote.
The Court of Appeal ruled that this provision was
not in breach of paragraph 2(b) of the Charter. At
page 166, the Court stated:
Viewed in this perspective, it becomes immediately and
abundantly clear that the expression of opinion sought by a
plebiscite under the Plebiscite Ordinance has nothing at all to
do with the fundamental freedom of expression guaranteed by
the Canadian Charter. It does not abridge or abrogate the fun
damental freedom of expression previously enjoyed by the
applicants as a guaranteed birthright. It is a supplementary
forum created by the Territorial Government for its own infor
mation purposes. The fact that the applicants were denied the
opportunity to participate in a public opinion poll did not
detract from their fundamental right to speak out and express
their views on the subject matter, whether individually or
through the media.
The Court of Appeal also refused to grant the
applicants relief under subsection 6(2) of the Charter
which guarantees mobility rights. The Court noted
such rights were subject to "any laws or practices of
general application in force in a province other than
those that discriminate among persons primarily on
the basis of province of present or previous resi
dence", the quoted words being the exact wording of
paragraph 6(3)(a) of the Charter.
With respect to applicant's counsel's argument that
there is a breach of subsection 15(1) of the Charter, I
can only say that I am not persuaded that the discrim
ination alleged by the applicant is on a ground analo
gous to those enumerated in that section.
To respond more favourably to the applicant's
claim would be to create a fiction as to residency
requirements which, in my respectful view, a Court
should not countenance, no matter how aggrieved the
applicant should feel about it. The Federal Court of
Appeal has stated, in the case of Kretowicz et al. v.
Minister of Employment and Immigration (1987), 77
N.R. 38, that public authorities cannot be held
accountable for the consequences of a particular
course of conduct undertaken by a supplicant before
the Court. Such consequences often flow when citi
zens of a province in Canada decide to move to
another province where for purposes of a provincial
election, they cannot comply with minimum resi
dency requirements.
If this principle should apply with respect to elec
tion for members of legislative assemblies, it would
be unconscionable not to make it applicable to a ref
erendum where the voting is not of the kind specifi
cally guaranteed in section 3 of the Charter.
I should therefore conclude that the applicant has
not successfully established a breach of his rights
under paragraph 2(b), and sections 3, 6 and 15 of the
Canadian Charter of Rights and Freedoms.
The parties, I hope, will appreciate that in these
conclusions, briefly expressed, I am cognizant of the
practicalities involved with time running out. It might
be obvious to many that the issues raised might be
deserving of a hearing and enquiry by the Federal
Court of Appeal. I am also aware that the applicant is
in a quandary as to the further procedure to be fol
lowed, i.e. a section 17 claim with a concurrent appli
cation for special directions to expedite a trial or an
appeal from this order to the Federal Court of
Appeal.
For purposes of enabling the applicant to seek such
further redress, I should find that I have jurisdiction
under section 18 to deal with the substantive issues
but that I should otherwise dismiss the applicant's
Charter challenge.
An order is issued accordingly.
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