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Judge reserves on granting stay of ruling giving long-time expats the vote

Lawyer Shaun O’Brien is seen outside the Ontario Court of Appeal on Friday, June 20, 2014. O’Brien represents two Canadians living in the U.S. who successfully challenged a voting ban for long-term citizens living abroad. THE CANADIAN PRESS/Colin Perkel

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Lawyer Shaun O’Brien is seen outside the Ontario Court of Appeal on Friday, June 20, 2014. O’Brien represents two Canadians living in the U.S. who successfully challenged a voting ban for long-term citizens living abroad. THE CANADIAN PRESS/Colin Perkel

TORONTO - With four federal byelections looming, an Ontario justice reserved his decision Friday on whether to put on hold a ruling that extended voting rights to long-time expatriate Canadians.

At issue is a ruling last month in which a court struck down parts of the Canada Elections Act that disenfranchise Canadians living abroad for more than five years.

The federal government urged Justice Robert Sharpe of the Ontario Court of Appeal to stay the ruling until an appeal can be heard.

Speaking for Ottawa, lawyer Peter Southey said repeatedly it would be unfair to resident Canadians to allow non-residents with "lesser citizenship responsibilities" to vote.

Expatriates aren't impacted by laws in the same way as residents are and denying them voting rights has nothing to do with their "worthiness" as citizens, Southey argued.

"They are differently placed," Southey told Sharpe, noting that even a single ballot in theory can determine the outcome of an election.

Sharpe said he had difficulty with Southey's idea of "fairness," saying it could be just as unfair to deny a citizen the right to vote.

The case was brought by two Canadians living in the U.S., who argued they still have a strong attachment to Canada and follow its politics closely.

Their lawyer, Shaun O'Brien, argued against the stay, saying allowing the expats to keep their voting rights pending the appeal would cause no tangible harm.

"What the government is now trying to do is claw back votes," O'Brien said.

Citizens abroad can indeed be affected by Canadian laws, she noted, and the five-year rule, as Ontario Superior Court Justice Michael Penny found on May 2, was arbitrary.

She also pointed out expatriates who want to vote have to "make quite an effort" to register, find out who their preferred candidate is, and make sure they get their mail-in ballot back to Canada on time.

Following Penny's ruling, Elections Canada moved immediately to facilitate voting rights for long-term expatriates — estimated to number about 1.4 million people.

However, only 13 people outside the country have actually registered to vote since the ruling — and only one has actually voted. It is not clear, however, how long any of those have lived abroad for more than five years and would be ineligible if the stay is granted.

In all, 131 voters abroad have registered for the four byelections scheduled for June 30.

Elections Canada numbers also show only a tiny fraction of eligible expatriates voted in the last federal election.

"The numbers are obviously very small," O'Brien said. "This isn't an avalanche of votes."

Sharpe said he would rule on the stay as soon as possible.

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