In a 2-1 ruling, the Ontario Court of Appeal overturned a decision that would allow 1.4 million Canadians who have been studying, working and living abroad the right to vote.
The two justices that voted to uphold federal voting restrictions based their entire ruling on a new argument put forward by the federal government about the social contract. They argue that the social contract is a citizen’s right to elect a Member of Parliament to represent them and their obligation to obey the laws that are enacted.
According to Chief Justice George Strathy and Justice David Brown, “permitting non-resident Canadians the right to vote would allow them to participate in making laws that affect Canadian residents on a daily basis, but have little to no practical consequence on their daily lives. This would erode the social contract and undermine the legitimacy of the laws.”
Both justices rely heavily on a new argument of a highly theoretical nature as valid grounds for taking away the fundamental right of citizens to vote. Interestingly, both justices were appointed to the Court of Appeal in 2013 and 2014 respectively by Prime Minister Stephen Harper’s government.
“Non-residents have the same obligation to obey the laws that affect them as do residents. Non-residents pay Canadian income tax on their Canadian income, and property tax on any real property they may own in Canada,” said dissenting judge, John Laskin, who was appointed by Prime Minister Jean Chretien’s government in 1994.
The so-called “social contract argument” is not mentioned in the application where the judge ruled that the voting ban is unconstitutional, nor in the stay motion which was heard last year. This argument has nothing to do with why Parliament extended and restricted voting rights for Canadians abroad.
Analysis of parliamentary debates, committee reports and members’ statements revealed that in discussions on enfranchising Canadians residing abroad, parliamentarians expressed discomfort not knowing the exact number of Canadians abroad, how connected they are to Canada, or whether the elections will be decided by people who have been away for 25 years or more.
The paranoia over the idea that expatriates have differing loyalties or that the expatriate votes will somehow completely change the tide of an election in any given year is not backed by evidence. Analysis of voter turnout of expatriates in the past five federal elections in Canada found that expatriate voter turnout is very low.
Voter turnout among Canadians abroad has also decreased over time. While these data may establish that a very small percentage of Canadians abroad vote, this does not mean they should be denied the right to vote. There are other problems that likely contribute to the low turnout such as the fact that Canadian parties do not outreach to expats and that voting abroad is a difficult process.
In prior elections, expatriate votes have had minimal ability to influence the outcome of Canadian elections, but with over 2.9 million Canadians abroad they are a significant constituency that should not be dismissed and ignored. With polls suggesting a tight three-way race in the general election on October 19, expatriates might have made a difference in closely contested ridings.
It is impossible to know how Canadians abroad vote because Elections Canada lumps their votes with prisoners and military members who use special ballots. While the votes of expats, prisoners and military members lumped together show strong support for conservative candidates, it is possible that the expats among them vote differently.
Americans living outside of the country have the right to vote no matter how long they have been abroad, providing they pay taxes. The right to vote expires in the United Kingdom after 15 years abroad. This is three times longer than what Canada permits even though Canada is part of the Commonwealth.
Australian citizens abroad are allowed to vote so long as they intend to return to Australia within six years. In New Zealand, there is a three-year limit but the clock is reset every time citizens visit the country.
The five-year limit in Canada is an arbitrary number and is unnecessarily difficult. Canadians need to resume residency to regain their right to vote abroad.
The right to vote is a fundamental right of citizenship that is protected by the Charter and does not depend on place of residence. The five-year limitation does not conform to the 21st-century demands of globalization. While there is currently an NDP-sponsored bill to repeal the provision that limits voting rights for Canadians abroad as unconstitutional, it is possible that the judgment of two Ontario appellate judges could be overturned on appeal to the Supreme Court of Canada.
The million-plus Canadians who have been living outside the country for more than five years have been denied the right to vote.
The Ontario Court of Appeal upheld federal voting restrictions in a 2-1 ruling saying non-residents do not live with the consequences of their votes on a daily basis, so it would therefore harm Canada’s democracy to let them cast a ballot.
It would “erode the social contract and undermine the legitimacy of the laws,” Chief Justice George Strathy said for the majority, joined by Justice David Brown.
The challenge to voting restrictions was brought by Gillian Frank, a former Canadian Forces member from Toronto who has lived in the United States for 13 years and is pursuing postdoctoral studies, and Jamie Duong, who left Montreal for high school in Vermont and now works at Cornell University. Both have family in Canada and say they would return if they could find suitable jobs in their fields.
In an interview, Prof. Frank, a visiting fellow at Princeton University’s Center for the Study of Religion, said he left Canada after his advisers at York University told him he would have better job opportunities in Canada with a U.S. degree.
He and Mr. Duong brought the challenge after being unable to vote in the last federal election. The ruling makes it unlikely, but not impossible, that they and other non-residents will be able to vote in the October election. Lawyers for the two non-residents could still ask the courts to block the effect of the court ruling, pending an appeal to the Supreme Court. A lower court had ruled in their favour, striking down restrictions as a violation of the Charter of Rights and Freedoms’ Section 3 guarantee of the right to vote to all citizens. The federal government had appealed.
The Court of Appeal’s ruling revealed a deep breach over voting rights between the two judges in the majority and the dissenting judge, Justice John Laskin. They disagreed on almost everything – from the government’s objective to the effect on non-residents of being unable to vote.
The majority said the voting restrictions are temporary, do not speak to the non-residents’ “worthiness” as citizens and could be regained if they return to the country. They said, therefore, that the court should relax its standard of review and defer to the government’s choice. They said that voting restrictions based on residency go back many years in Canada and that strengthening the social contract was the implicit purpose of the residency requirement.
In dissent, Justice Laskin said the ruling has the effect of turning non-residents into ‘second-class citizens.’
“We live in a global community,” he wrote, and the Charter’s framers intended voting rights to be protected.
He also said the government “invented” the goal of protecting the social contract only after a Superior Court judge struck the law down last year. Even if that were the goal it would not justify putting a limit on a right that the Supreme Court has extended even to federal prisoners. He called voting a “core democratic right” and said “judicial scrutiny of the government’s justification should be exacting.”