Arnold et al. v. Attorney-General of Ontario
61 O.R. (2d) 481
 O.J. No. 889
HIGH COURT OF JUSTICE
4TH SEPTEMBER 1987.
Constitutional law -- Charter of Rights -- Right to vote -- Election Act requiring six months residency period for voters -- Reasonable limit to guarantee of voting rights -- Canadian Charter of Rights and Freedoms, s. 3 -- Election Act, 1984 (Ont.), c. 54, s. 15(1)(c).
Section 15(1)(c) of the Election Act, 1984 (Ont.), c. 54, imposes a six-month Ontario residency requirement for voters in provincial elections. That section contravenes s. 3 of the Canadian Charter of Rights and Freedoms, but it is a reasonable limit under s. 1. The case for some durational residency requirement is overwhelming, given the process of an election, with enumerations, preparation of voters' lists, provisions for voting at advance polls and provisions for equipment and training of large numbers of persons to act as deputy returning officers and poll clerks. The process of determining whether a person is a resident calls for a readily applicable rule of thumb in order to determine that the reasonable requirement of residency has been met. The setting of the residency period is, within the range of the reasonable, for the legislature and not the courts.
Storey v. Zazelenchuk (1984), 36 Sask. R. 103, 12 C.R.R. 261, folld
Other cases referred to
Dunn v. Blumstein, 405 U.S. 330 (1972); Reference re Yukon Election Residency Requirement (1986), 27 D.L.R. (4th) 146,  4 W.W.R. 79,  N.W.T.R. 213, 2 B.C.L.R. (2d) 50, 22 C.R.R. 193; Edwards Books & Art Ltd. v. The Queen (1986), 35 D.L.R. (4th) 1, 30 C.C.C. (3d) 385,  2 S.C.R. 713, 86 C.L.L.C. D7819981814,001, 55 C.R. (3d) 193, 28 C.R.R. 1, 71 N.R. 161
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 1, 3, 24(1)
Election Act, 1984 (Ont.), c. 54, s. 15(1)(c) (am. 1984, c. 54, s. 15(2))
APPLICATION for a declaration pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms that s. 15(1)(c) of the Election Act violates s. 3 of the Charter.
M. Arnold, applicant, appearing in person.
R.E. Charney, for respondent.
SUTHERLAND J. (orally):-- The applicants seek a declaration pursuant to the Canadian Charter of Rights and Freedoms, s. 24(1), that s. 15(1)(c) of the Election Act, 1984 (Ont.), c. 54, contravenes s. 3 of the Charter, and they seek also an order that their names be placed on the list of electors for the provincial riding of Eglinton in connection with the Ontario provincial election scheduled for September 10th. The applicants' stated grounds are that the constitutionally protected rights of the applicants to vote in an election of members of a legislative assembly have been violated by the refusal of an agent of the chief electoral officer of Ontario, for the provincial riding of Eglinton, to place their names on the list of voters for that constituency.
Section 3 of the Charter reads as follows:
3. Every citizen of Canada has the 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.
As notice was duly served upon the Attorney-General of Ontario of a constitutional question to be argued, the Attorney-General was represented, most ably, by Mr. Charney. Mr. Arnold, one of the applicants and himself a lawyer in another province and very shortly to be called to the Bar of Ontario, acted for himself.
The parties did not dispute that there should be some residence requirement in respect of the right to vote in a provincial election. There was also a substantial measure of agreement between the parties that in its literal form, s. 15 of the Election Act, 1984 contravenes s. 3 of the Charter. I agree that it is reasonable to read some residency requirement into s. 3. There is no quarrel as to that. The point of the applicant is that he has moved here and that he was resident here in the period when he would have been enumerated. He left Nova Scotia for Ontario on the date of the writ. He is employed here; he has purchased property here; and his children are already, or shortly are to be, attending school here. Moreover he and his co-applicant each have historic connections with the Province of Ontario, in that the co-applicant used to live here, for 20 years, and in that the applicant, Arnold, was also resident in this province for a long time before going to Nova Scotia. Mr. Arnold adds that his grandfather lived in this province, again for a very long time.
Initially, Mr. Arnold was inclined to the view that no durational residence requirement could be legitimate. During the course of the hearing, he appeared to concede that there could properly be some time requirements for residency, provided that they were geared to the time reasonably necessary for the operation of the electoral machinery itself, including the time for enumeration and the settlement of lists, and the setting up of the whole election apparatus. As I understood the concession he made, the durational requirement should, at the maximum, extend to the time for the commencement of the enumeration. Another date that might be considered would be the date of the writ of election, although I do not believe that there was any concession on that point, and I think it highly unlikely that there would have been since, on the date of the writ, Mr. Arnold was in the process of leaving the Province of Nova Scotia, bound for Ontario to take up residence.
The position of the Attorney-General is that a durational residence requirement is a contravention or denial of the right provided under s. 3 in so far as the durational requirement extends beyond what might be required to establish the bona fides of residence. This case is really fought on the ground of s. 1 of the Charter, that is: whether the six-month durational residence requirement is a "reasonable limit" within the meaning of s. 1 of the Charter.
Mr. Arnold draws my attention to the decision of the Supreme Court of the United States in Dunn v. Blumstein, 405 U.S. 330 (1972), where the majority struck down a State durational residency requirement of one year. Mr. Arnold contends strongly for some sort of test that would take into account the circumstances of someone like himself, and asserts that a durational requirement is not necessary, and that it takes away from a right that is guaranteed to him by the Charter. He would have each case considered on its merits to establish the bona fides of ordinary residence.
Before I turn to consideration of reported decisions in Canada, I should refer to s. 15 of the Election Act, 1984, which states as follows:
15(1) In an electoral district in which an election to the Assembly is to be held, every person is entitled to vote who, on the general polling day,
has attained eighteen years of age;
is a Canadian citizen;
(c) has resided in Ontario for the six months next preceding polling day;
(d) resides in the electoral district; and
(e) is not disqualified under this Act or otherwise prohibited by law from voting.
The only feature of s. 15 that would disqualify the applicants from voting in the forthcoming election is cl. (c), having to do with residency in Ontario for the six months next preceding the polling day.
A similar six-month limitation period has been considered at the appellate level in one province and in the Northwest Territories. The Court of Appeal of Saskatchewan, in Storey v. Zazelenchuk (1984), 36 Sask. R. 103, 12 C.R.R. 261, dealt with a virtually identical provision, in circumstances where the parties appear to have conceded in advance that a provincial government was empowered to impose the requirement of a reasonable period of prior residence. Given that admission or agreement on the part of the applicants in the Storey case, the battle was fought there, as here, largely with reference to s. 1 of the Charter and entirely on the question whether six months was a reasonable period. It was held that the six-month durational residence requirement was a reasonable limitation within the meaning of s. 1 of the Charter. It was considered to be a legitimate provincial objective to have a residency requirement. Legitimate provincial objectives, according to Chief Justice Bayda, included the protection of the integrity of provincial elections by requiring genuine ordinary residence in the province. At p. 113 Sask. R., p. 264 C.R.R., the Chief Justice stated:
And, since ordinary residence is such an elusive business, it is not unreasonable to define it with reference to a fairly lengthy period of time in order to avoid any argument over the issue.
Moreover a period of advance residence may be required having regard to the nature and content of a vote. While its most basic purpose is to elect, within a constituency, a representative to the Legislative Assembly, it is not confined to that. And even though it is basically prospective in nature -- the Assembly is being elected to govern for a period ahead -- a vote has, in practice, a decidedly retrospective aspect to it: it often constitutes a means of passing judgment upon the performance, during their preceding terms of office, of the encumbent member as well as the government. And since today's political issues are many in number, diverse in nature and increasingly complex (and often local) it is not unreasonable to require a person to be resident in the province for a period of some months before being entitled to vote.
Chief Justice Bayda went on to state that the six-month limitation was prevalent in many provinces, and stated, as was true at that time, that Ontario, Quebec and Prince Edward Island still maintained a 12-month residency requirement, but that in all other provinces the residency requirement was then six months. Since the Storey case was heard the durational requirement in Ontario has been reduced from 12 to six months.
Chief Justice Bayda stated, again at p. 133 Sask. R., p. 264 C.R.R., that:
... it would be singularly inappropriate for the courts to hold that something less than six months would be more appropriate. The issue here is where to draw the line, so to speak. The Legislature drew it at six months and in the circumstances that cannot be said to be unreasonable.
A similar result was reached in the decision of Reference re Yukon Election Residency Requirement (1986), 27 D.L.R. (4th) 146,  4 W.W.R. 79,  N.W.T.R. 213, that being a decision of the Yukon Territory Court of Appeal. The court consisted of Nemetz C.J.Y.T., and Macdonald and Macfarlane JJ.A. The court was of the view that in the circumstances of the Yukon Territory, a 12-month period was reasonably justified.
On the question of where the line should be drawn, and by whom, I have been referred to the Supreme Court of Canada decision in Edwards Books & Art Ltd. v. The Queen (1986), 35 D.L.R. (4th) 1, 30 C.C.C. (3d) 385,  2 S.C.R. 713, where at p. 51 D.L.R., pp. 781-2 S.C.R., Dickson C.J.C., speaking of the concept of a "reasonable limit" under s. 1 of the Charter, stated:
A "reasonable limit" is one which, having regard to the principles enunciated in Oakes, it was reasonable for the Legislature to impose. The courts are not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line.
In my opinion, on the facts of this case, the provisions of s. 15(1)(c) of the Election Act, 1984 of Ontario do fall within the "reasonable limits" in the meaning of s. 1 of the Charter. Accordingly, there is no need for me to continue with any response to any of the submissions that have been made with respect to question of appropriate remedy if I had found the provision to be not a reasonable limit. That problem simply does not arise before me. It is my opinion that the legislation is allowed by s. 1 of the Charter and, accordingly, is justified. The application is accordingly dismissed.
The applicant, having originally opposed any durational residence requirement and having later conceded that some such requirement was reasonable in order to permit the electoral machinery to operate effectively, reverted toward the end of his submissions to something akin to his original position. He seemed to be urging that the court strike down the section because it did not take into account the details of his own particular position. In this he ignored or chose to ignore the conclusion of Chief Justice Bayda in Storey v. Zazelenchuk, supra, that a durational residence requirement was a reasonable conventional response to what would otherwise be the great difficulties of having a question like ordinary residence determined in myriad cases by untrained persons with limited time to devote to each individual case. The applicant seems not to have faced up to the practical implications of the sort of individualized adjudication he was seeking to have made the general rule. The approach he was advocating, while it may have readily produced in his own case an easy decision that he was in fact ordinarily resident in Ontario on the election date or on the enumeration date, could in other cases have presented very difficult questions, questions difficult to have resolved on a mass basis within a sharply limited time by persons who for the most part do not have legal training.
In my view, the case for some durational requirement is overwhelming, given the whole process of an election with enumerations, preparation of voters' lists, provisions for voting at advance polls and provisions for the recruitment and training of large numbers of persons to act as deputy returning officers and poll clerks. The process of determining whether a person is a resident calls for some sort of readily applicable rule of thumb in order to determine that the reasonable requirement of residence has been met. That in my view is what Bayda C.J.S. was referring to in Storey v. Zazelenchuk. Once it is conceded that some readily applicable test is reasonable and that it is reasonable to proceed on the basis of a durational requirement instead of delving in each case into complex questions of intention, the remaining question is where to draw the line. At that stage the above-quoted dictum from the decision of Dickson C.J.C. in Edwards Books comes into play, reminding us that the placing of the dividing line, within the range of the reasonable, is for the legislature and not for the courts when the issue is a "reasonable limitation" under s. 1 of the Charter.
In accordance with prior agreement between the parties, there will be no order as to costs.