Barring expatriate Canadians from voting in federal elections is rooted in bygone days of horses and buggies and violates Canada’s modern constitution, says the Supreme Court, which on Friday ensured a lasting franchise for long-term non-residents.
Two Canadians working in the United States, Gillian Frank and Jamie Duong, challenged federal voting restrictions after they were unable to vote in the federal election of 2011. At the time, the law said non-resident citizens could not vote if they had lived more than five years abroad.
In a 5-2 ruling, the court said a law taking away the vote from Canadians living abroad long-term violates the 1982 Charter of Rights and Freedoms. The Liberal government repealed that voting bar last month, but the Supreme Court ruling lays down the law to any future government. And an opt-out clause in the Charter that allows governments to override a court ruling does not apply to the right to vote.
Chief Justice Richard Wagner, writing for four judges in the majority (a fifth wrote separate reasons), said that residency restrictions on voting date from a time when the franchise belonged to male property owners, travel was difficult and citizens tended to spend their lives in one place.
Today, travel, the internet and a globalized economy have altered everything. “In sum, the world has changed,” he wrote. “Canadians are both able and encouraged to live abroad, but they maintain close connections with Canada in doing so.” He added that “citizenship, not residence, defines our political community and underpins the right to vote.”
The ruling shows the new Chief Justice following in the footsteps of his predecessor, Beverley McLachlin, who retired 13 months ago. She wrote one of the court’s most controversial rulings, a 5-4 decision striking down a ban on voting by federal prisoners in 2002.
Dr. Frank, from Toronto, and Mr. Duong, from Montreal, told the court in legal filings they would return to Canada if they could find suitable employment, and that they maintain ties with family back home. “My right to vote makes me whole,” Dr. Frank, who teaches American studies at the University of Virginia, said in an interview after the ruling.
“Our democracy is richer and stronger because we have welcomed back hundreds of thousands of Canadian citizens and affirmed for them they matter, and their voting rights matter, and they are welcome to participate in Canadian democracy.”
Mr. Duong works at Cornell University in Ithaca, NY.
The court ruling said that, in 2009, 2.8 million people, or 8 per cent of the population then, had been living outside the country for a year or more; of that group, more than one million had been abroad for five years or more.
The two dissenting judges, Justice Suzanne Côté and Justice Russell Brown, said that the government had put a reasonable limit on the right to vote by linking it to Canadian residency.
“A five-year time period falls within the range of reasonable options that were open to Parliament, and it is not this Court’s prerogative, let alone within this Court’s expertise, to second-guess the precise location at which Parliament chose to draw the line,” they wrote.
But the majority said that for a “core right” such as the right to vote, it owed no deference to Parliament. Instead, it built its ruling on the court’s decision in the 2002 case on prisoners' voting rights. Writing for the majority, then-Chief Justice Beverley McLachlin had talked of a “social contract” between voters and their democracy. In the expat case, however, the Attorney-General’s office and two judges on the Ontario Court of Appeal argued that allowing non-residents to vote would break the social contract with resident voters, who are subject to Canadian laws daily. The appeal court upheld the voting ban in a 2-1 ruling in 2015.
But Chief Justice Wagner said the appeal court majority had misinterpreted Chief Justice McLachlin’s words, which were meant as a defence of voting rights. Non-resident citizens, he said, may still pay Canadian taxes, and are subject to Canadian law when they return home; additionally, some Canadian laws have application outside of Canada’s borders, and government policies can have global consequences.
Sean Fine