Noted constitutional and human rights lawyer Julius Grey has been practicing at the Quebec bar for over 40 years. His latest project has landed him squarely in the middle of an important issue in the Quebec election campaign. On the one hand, officials of the Parti Quebecois have expressed concern that “outside forces” will commit election fraud and in effect steal the election. On the other hand, there have been widespread reports of students being refused registration by election officials. The stakes are high. Clearly, the right to vote is fundamental to democracy and is enshrined in section 3 of the Charter of Rights and Freedoms: “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.”
If election officials are improperly refusing to register voters with the intent of assisting a party to the election, that would be misconduct of a very high order. The election law provides that a person is a qualified elector if they have been “domiciled” in Quebec for six months. The discretion of election officials is a function of the definition of domicile in the Civil Code of Quebec. Article 75 states: “The domicile of a person, for the exercise of his civil rights, is at the place of his principal establishment.” Article 76 states: “Change of domicile is effected by actual residence in another place coupled with the intention of the person to make it the seat of his principal establishment. The proof of such intentions results from the declarations of the person and from the circumstances of the case.” Article 78 states: “A person whose domicile cannot be determined with certainty is deemed to be domiciled at the place of his residence.”
Armed with these provisions, election officials have denied registration to students who have lived in the province for years, and have supplied proof in the form of health cards or tax payments. Such evidence has been deemed insufficient to establish an intention to make the province their principal establishment. Interpretation of domicile in this manner sets an enormously high bar for registration, and gives election officials untramelled discretion to deny registration. It also overlooks the deeming provision in Article 78.
This is where Julius Grey comes in. He has been retained by persons who consider themselves qualified electors but have been refused registration on grounds they could not establish domicile in Quebec. Mr. Grey has advised that he will be proceeding to Court next week, seeking an injunction to provide that electors be qualified if they have resided in the province for six months or more. In administrative law terms, this would be an order for mandamus compelling the performance of a statutory duty. Where the statutory duty is discretionary, it would have to be shown the decision-maker acted in a manner that was unfair or in bad faith for an injunction to issue. Mr. Grey and his clients believe these grounds exist. Those concerned about democracy will be watching with interest.