Voting and Quebec's domicile rule

In the end, only one of five McGill students denied the right to vote by Quebec's director of elections will be able to cast a ballot in Monday’s provincial election. Still, their lawyer, Julius Grey declared “partial victory” in their challenge against Quebec's director of elections for refusing them the right to vote.

It all began when a group of friends ventured out to a registration office in their West-end Montreal riding. All four of them — as well as a fifth petitioner, who is running for the Green Party of Quebec — were told that they were ineligible to vote in Quebec.

They were not ‘domiciled,’ according to the Directeur général des élections du Québec (DGE).

That, they say, is an abrogation of their fundamental right to vote.

“If a person of majority age has only one residence on the entire planet, and it’s in Quebec, they should be able to vote without further ado,” says Julius Grey, counsel for the five students and a senior partner with Grey Casgrain.

Last week, Grey filed an injunction in Quebec Superior Court seeking to get all four students onto the voters’ list.  The lawyer argued that his five clients — all of whom have sole residency in Quebec, but who were told that they did not constitute a voter under the Elections Act — meet the requirements and should be added to the list of electors. He argued that failing to do so, and maintaining a high burden of proof on who qualifies to be an elector, is a direct violation of Section 3 of the Canadian Charter of Rights and Freedoms.

“The purpose of the Election Act, in fact all election acts, is to facilitate participation in the domestic process; not to make it more difficult,” Grey’s motion reads. “Never has a court prescribed narrow technical rules to this fundamental right.”

To make that case, he underlined the Supreme Court of Canada decision in  Figueroa v. Canada, amongst others, wherein the Supreme Court found Elections Act restrictions on what constitutes a registered political party to be unconstitutional under Section 3, as they infringed on citizens’ right to meaningful engagement in the democratic process.

The Quebec government and the DGE, however, made the case that the court cannot intervene on what constitutes an elector in the midst of an election campaign.

The court, in the end, found that while it did have standing to intervene — and it did, in the case of Brendan Edge — four of the five violations were not prima facie, and therefore couldn’t be decided on a provisional basis.

Edge is a candidate for the Green Party in the Laval riding of Chomedy. The judge found that, since a candidate must be on the electoral rolls, Edge must therefore be eligible. Failure to add him to the electoral rolls, Grey successfully argued, would be “manifestly unreasonable.”

For the other four — and the potentially hundreds, if not thousands, of others they represent — it will be a fight for another day, if they want to have it. In the interim, they won’t be able to vote.

“It’s a partial victory,” says Grey. “But it’s a real one.”

The initial news of those voters being turned away at the polls —all anglophone students — turned the issue into a political football during a fractious political campaign. The Parti Quebecois even dragged the matter out as evidence that there was a Rest-of-Canada plot to influence the election, and asked the electoral body to investigate the matter. The DGEQ rebuked that claim, saying there’s no evidence of organized fraud (ironically, the DGEQ is also looking into whether one of the PQ’s candidates, Bernard Drainville, also the architect of the Charter of Values, broke electoral laws).

Yet, when the initial issues arose, nobody could point to a definition of what ‘domicile’ even meant.

“Evidence of domicile is first and foremost a question of law, and is demonstrated by intention. Intention is evidenced by material facts, i.e. a person’s actions and behaviours. The domicile is therefore the place with which a person’s important actions or ‘states’ of civic life are associated,” the Chief Electoral Officer said in a clarifying statement, released after stories of voters being turned away began to surface.

That arbitrariness, says Grey, begets the undue infringement on those students’ right to vote.

Marois, in musing on the subject, suggested that anyone wishing to vote in Quebec would have to have a driver’s license, a health card, and/or pay taxes.

Holding such a strict definition of eligibility promises to disqualify legions of students from the rest of Canada — even if they’ve been in Quebec for years, and plan on staying indefinitely.

While there’s no hope that the issue will be resolved for this election, if Grey’s intervention makes it back to court, the issue — which has been around for years — will be put to bed before the next time that Quebecers go to the polls.

“There is an important point of law to establish,” he says.

Whether or not he’ll convince a judge in that regard, he says, remains to be seen.

“I’m never optimistic or pessimistic. What I can tell you is that I think I have an important point to make.”

That point may have broader implications, as the federal government forges ahead with plans to abolishing vouching as a means to allow voters to cast a ballot federally — a move that reams of committee witnesses say will have the very real effect of turning voters away.