06/19/2014 06:58 EDT | Updated 08/19/2014 05:59 EDT

Ottawa to fight court ruling giving ex-pats a vote

The federal government is asking for a stay of an Ontario court ruling that gave Canadian citizens living abroad the right to vote, no matter how long they've lived outside of Canada.

An amendment to the Canada Elections Act passed in 1993 allowed ex-pats to vote in Canadian elections, but only if they had been out of the country for less than five years.

On May 2, Ontario Superior Court Justice Michael Penny found the five-year limitation violates section 3 of the Charter of Rights and Freedoms, which constitutionally guarantees all Canadian citizens the democratic right to vote.

The request for a stay will be heard Friday morning at the Ontario Court of Appeal in Toronto.

The federal government didn't file notice for an appeal and a stay until a month after Penny's ruling.

The timing is critical because four byelections are occurring on June 30 and Elections Canada has already accepted applications from people living abroad who want to cast a ballot in two Ontario ridings 10 days from now.

Most ex-pats vote in advance by mail.

Shaun O'Brien, the lawyer who represented two ex-pats in the lower court, said she's not sure why the government is challenging the ruling. 

''They think it's unfair to allow people outside the country to vote in that it impacts people inside the country who live here," she said, reached by phone in Toronto.

1.4 million Canadian citizens affected

In the lower court case, an elections expert estimated there are 1.4 million Canadian citizens who have lived abroad for more than five years.

"We're just saying five years is an arbitrary limit," O'Brien said.  

Since the ruling, she said Elections Canada has told her only 12 people have applied to vote in the Toronto byelection in Trinity-Spadina and one person has applied to vote in Scarborough-Agincourt, also a Toronto riding. She added she knows one has already voted.

No ex-pats have applied to vote in the Alberta ridings of Macleod and Fort McMurray-Athabasca where byelections will be held.

"Is there a substantial change in the ex-pat Canadian citizen that takes place after five years and one day?" O'Brien asked in court.

The two applicants in the lower court case are Gillian Frank and Jamie Duong, both academics living in the U.S.

Applicants visit often, plan to return

In their court documents, they said they visit Canada often and intend to return. Each said they follow Canadian politics closely and were upset when they found out they couldn't vote in the 2011 general election because they had been living outside Canada for more than five years.

"If you go through the trouble of deciding to vote from abroad, applying for the package and getting it, and getting your vote in on time — that itself is evidence of a connection [to Canada]," O'Brien said.

She added Elections Canada has been allowing ex-pats who've been away for more than five years to vote if they show up at a poll on election day and have proper ID.

In the last federal election, 6,000 "international voters" cast ballots, according to Elections Canada, along with 26,000 Canadian Forces members living abroad. About 15,000 prisoners also cast ballots.