Frank v. Canada: Government Allowed To Shift Emphasis On Appeal In Constitutional Case

The Ontario Court of Appeal's July 20, 2015 judgment in Frank v. Canada has attracted significant media attention. Chief Justice Strathy (Justice Brown concurring) overturned an application judge's decision and upheld the constitutionality of legislation that removed the federal voting rights of most non-resident Canadian citizens who have lived abroad for five years. Justice Laskin wrote a vigorous dissent. (We previously discussed Justice Sharpe's refusal to grant a stay of the application judge's decision here.)

The decision also raised an issue of appellate practice, about the circumstances in which the government can recast its justification for a rights-infringing law on appeal. The Court was divided on this issue as well.