Supreme Court should let long-term expats vote: Pardy

Gar Pardy joins the extend the expatriate vote advocates.

Like most advocates, they appear to argue for this right to be indefinite, no matter how long outside Canada, no matter how little the connection.

All – unless I have missed it – are silent with respect to those born-abroad but who are able to ‘inherit’ their citizenship, and who may never have lived in Canada:

Two Canadians living in the United States started the right-to-vote case now before the Supreme Court nearly five years ago. They filed a constitutional challenge with the Ontario Superior Court of Justice when they discovered they could not vote in the 2011 federal election.

Judge Michael Penny of the Ontario court ruled in May 2014 that Parliament could not take away the voting rights of non-resident Canadian citizens. In doing so, Judge Penny struck down sections of the Canada Elections Act since they violated Section 3 of the Charter of Rights and Freedom.

The Harper government appealed this decision to the Ontario Court of Appeal. In a split decision (two to one) last July, it overruled Judge Penny. The majority ruled that while Section 3 of the charter had been violated, the “pressing and substantial” standard of Section 1 provided enough reason for the violation.

The dissenting judge, Justice John Laskin, strongly and substantively took issue with the majority decision. He argued that Judge Penny’s judgment was a “thorough and well-reasoned analysis of the issues.” He went on to argue that the majority’s use of the “the pressing and substantial objective of preserving the social contract at the heart of Canada’s system of constitutional democracy” was not valid.

The introduction of the “social contract” element in the case was not reflected in the government’s arguments before Judge Penny nor was it reflected in the documentation presented before the appeal court. Rather, the government’s lawyers did so only in oral arguments to which Justice Laskin disagreed. He concluded that Parliament did not have a “social contract” objective in mind when it passed the “five-year non-residency limitation in 1993.”

The majority decision of the appeal court in using the gaseous concept of “social contract” to deny a fundamental right of all Canadians to vote is without precedent. It does reflect many aspects of policy-making by the previous government where reason, evidence, and attention to detail were discarded. In the words of Judge Penny, the government’s arguments demonstrated that “there is simply no evidence of a problem. Rather, the government’s objectives are rhetorical, vague, and generic.”

Social contracts between the state and its citizens have long been an idea that philosophers have argued over far into the night without adding much useful light. Rather, as Justice Laskin concluded, the deprivation of the right to vote solely on the basis of residence turns Canadians abroad “into second-class citizens and so undermines the values of equality and inclusiveness…underlying our charter rights.”

In due course we can all hope the Supreme Court overrules this aberrant decision by the Ontario appeal court and in doing so establishes the charter right for some one million Canadians to vote.

Source: Supreme Court should let long-term expats vote |

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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