Colby Cosh: The Supreme Court faces the emo drama of expatriate voting

Good if somewhat disjointed commentary:

On Wednesday the Supreme Court will hold a hearing in Frank vs. Canada, a test case on the voting rights (in federal elections) of expatriate Canadian citizens. Everybody agrees that they definitely have some. The Charter is unambiguous about assigning such a right to all Canadian citizens. The question is whether this is a right that can be temporarily withdrawn, as the law now does, from a Canadian who has been apart from Canada for some time and is outside the reach of its law and institutions.

Lower courts have already offered conflicting answers, so it is hard to be sure what the Supreme Court will do. But emotional framing is bound to weigh a great deal in the final argument. In the court of origin, the government made an argument that letting long-term expatriates vote was unfair to the poor wretches who are trapped in Canada and who have no choice but to live with its government.

This was a sort of “dilution of voting power” argument, but it had the effect of sounding like the legal arguments that used to be made against prisoner voting — arguments that were ultimately thrown out. The Supreme Court approved inmate voting in 2002; having been asked “Hang on, you’re going to let a convicted rapist have the same voice in government as his victim?”, it returned what is now the accepted answer. “Yes, that’s the nature of a right. Like it or not, rapists have ’em too.”

This involves us in some logical awkwardness, because convicts have plenty of other rights whose free exercise we forbid after due process of law. But on the other hand, prisoners are definitely stuck with the Canadian state, and with its exclusive privilege of retaliatory violence, in an even more obvious sense than free residents are. It would thus be a bit weird to make Canada’s determination to count convict votes part of an argument, by extrapolation, for expatriate voting.

Weird or not, that’s what the originating judge did. He saw these as analogous questions of personal dignity. We don’t want to devalue or question the Canadian-ness of people who have been away for many years, but who feel Canadian and insist on being Canadian.

The majority on the Ontario Court of Appeal panel that next heard Frank vs. Canada cleared its throat and said, as it were, “Whoa, let’s start over.” Those judges chose a guiding metaphor that had not been used in the original contest: the philosophically notorious “social contract.” Resident citizens have duties and obligations that expatriates don’t: obvious ones include taxes and compulsory jury service (how would expatriates like to be reeled back in for that?), but there is also the big, obvious one of “being subject to Canadian law,” the vast obsidian bulk of which applies only on Canadian soil. Moreover, we exclude non-resident citizens from social entitlements like public health insurance.

But there is nothing in the text of the Charter that requires or urges a “social contract” framing of core democratic rights. The appeal court was, as I see it, trying to find a way of dressing common sense in legal language — asking, in effect, “Hang on: we’re really going to let U.S. taxpayers with Canadian passports vote in Canadian elections?” We have seen what often happens to such “Hang on …” arguments at the Supreme level.

Until recently, no one had considered letting expatriate citizens vote as a matter of right. The whole issue cropped up because Canadian law had, from the First World War on, to devise obviously desirable provisions for voting by Canadians who are abroad in uniform and in the foreign service. Citizens who are away from Canada just because there is more money or opportunity or sunshine somewhere else are not in the same position as those who are actual living tendrils of the Canadian state. But since the law makes a distinction between mere economic expats and offshore agents of Canada, the expats have an opportunity to denounce the distinction and wriggle through the hole.

For some reason, everyone recognizes that the “expatriates have a right to express Canadian identity” argument does not quite work for provinces. A Quebecer living in B.C. is likely to have a meaningful, even essential personal connection to Quebec, but there exists no legal concept of Quebec citizenship, or at least none recognized by the federal government.

I wonder, though, whether the resident citizen’s right to vote in federal elections could be logically severed from mere geographic accident, if we are going to adopt that view of things. Shouldn’t I be allowed to vote for a member of parliament in my hometown, although I no longer know much of its concerns and circumstances in detail, and almost never visit? Bon Accord, Alta., did form my character! And I suppose I care about it! From a polite distance!

Some Canadian citizens might be able to claim a right to cast a vote in many places with which they have some prior connection — maybe even an ancestral one. The opportunities for tactical voting would be hilarious. On what grounds could this kind of frenzy be ruled out, in logic, if the emotional principles of disfranchised expatriates are admitted by the law?

Source: Colby Cosh: The Supreme Court faces the emo drama of expatriate voting

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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