Supreme Court rules voting restrictions on expatriate citizens are unconstitutional

Well, that settles it, even if I disagree with the decision (Opinion: What should the voting rights of Canadian expatriates be).

We will find out just how many of these previously disenfranchised citizens vote in the 2015 election (the chart above covers previous elections):

The Supreme Court of Canada has ruled voting restrictions on expatriate citizens are unconstitutional.

Two Canadians working in the United States, Gillian Frank and Jamie Duong, challenged federal voting restrictions after being 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 December, a Liberal bill extending voting rights to long-term expatriates received royal assent. But at stake in the Supreme Court ruling was whether those voting rights could be taken away by a future government.

Dr. Frank, who was born in Toronto and was a Canadian Forces member, and now teaches American Studies at the University of Virginia, explained in an interview with The Globe and Mail on Thursday what it felt like not to be able to vote: “To watch democracy from the outside, it’s sort of like an injury, that acts up every once in a while.”

The court ruled 5-2 that the now-repealed law was unconstitutional. “The disenfranchisement of these citizens not only denies them a fundamental democratic right, but also comes at the expense of their sense of self-worth and their dignity,” Chief Justice Richard Wagner wrote for four of the judges in the majority. (A fifth judge wrote concurring reasons.) “These deleterious effects far outweigh any speculative benefits that the measure might bring about.”​

Mr. Duong, who left Canada in 2001 and works at Cornell University in Ithaca, N.Y., told The Globe on Thursday that he has a strong attachment to his native land. “I was born and raised in Canada; my parents still live in Canada. I’m a Canadian, and it’s my obligation to vote and participate in our democratic process.”

A lower-court judge had found the voting prohibition unconstitutional. But the Ontario Court of Appeal then ruled 2-1 that the law could stand, saying that non-residents do not live with the consequences of their votes on a daily basis. The dissenting judge said the restrictions had the effect of making non-resident Canadians second-class citizens. Dr. Frank and Mr. Duong appealed to the Supreme Court.

They are among 1.4 million Canadians who – as of 2009 – had been living abroad for more than five years.

The 1982 Charter of Rights and Freedoms says without qualification that every Canadian citizen has the right to vote.

Canada has always had residency restrictions on voting. During the First World War, the restrictions were eased to allow soldiers to vote. Advance voting was established in 1920 for salespeople and sailors. In 1945, proxy voting was allowed for prisoners of war. In 1970, diplomats and other public servants living abroad, and their dependents, were allowed to vote remotely. And in 1993, the vote was extended to citizens who had lived abroad for fewer than five years.

The federal Attorney-General’s office, in its Supreme Court filing, said the limit on expats’ right to vote is fair. “The legal responsibilities of long-term non-resident citizens under Canadian domestic law are much less than the responsibilities of resident Canadians,” it said. It added that similar limits on voting rights are common in other parliamentary systems derived from the British tradition.

Lawyers for Dr. Frank and Mr. Duong, in their written argument filed with the Supreme Court, said that Canadians who leave the country tend to do so for work-related reasons, but maintain their connection to Canada. “The inability to vote leaves them with no voice in the direction or well-being of the country, even though many of them have strong connections, including family in Canada, and wish to return.” Many of them have no right to vote anywhere, they said. They added that the voting restrictions harm the dignity and sense of belonging of expatriates.

The last major case on voting rights was in 2002, and it was one of the Supreme Court’s most controversial in the Charter era. The court ruled 5-4 that federal prisoners could not be denied the right to vote. “Denying citizen law-breakers the right to vote sends the message that those who commit serious breaches are no longer valued as members of the community, but instead are temporary outcasts from our system of rights and democracy,” then-Chief Justice Beverley McLachlin wrote for the majority.

Source: Supreme Court rules voting restrictions on expatriate citizens are unconstitutional
Ironically, the same day as this decision, the Globe published yet another op-ed (think it is the fourth) arguing against limiting voting rights for longer-term expatriates without the author, Yasmin Rafiei, or the Globe, acknowledging that the government had already changed the legislation.
Hardly a demonstration of being connected to Canadian political discourse and developments:

One of Justin Trudeau’s 2015 federal-election campaign lines was, “A Canadian is a Canadian, is a Canadian.”

Unless you live outside of Canada, it seems.

This Friday, the Supreme Court will decide if the democratic franchise of Canadians living overseas should be subject to a five-year limit. A voting ban – which denies Canadians the right to vote in elections after five years living overseas – was legislated in 1993 under Jean Chrétien, enforced under Stephen Harper, and has not yet been overturned under Mr. Trudeau. His government sought to repeal the five-year limit in 2016 via Bill C-33, but in the two years since its introduction, the bill has only achieved a first reading. Its tepid progress in Parliament has ushered the case into the hands of the Supreme Court, where it rests today.

The voting ban raises a fundamental question: What makes a Canadian a Canadian?

It’s a question I contend with in my daily life outside my homeland. I was born and raised in Canada and had only ever studied and worked in Canada until last year. If I have a personal geography, it is tied to my parents, whose immigration to Edmonton from Iran involved embracing every aspect of their new country. My dad had me on skis as soon as I could walk; we hosted neighbourhood street hockey on our driveway; Edmonton’s river valley was, to my mother’s consternation, my second home.

I was raised in our city’s public schools, graduated from the University of Alberta and delivered the faculty address at graduation. However, it was in leaving Canada that I fully came to terms with my national identity.

In 2017, I received a scholarship to study at University of Oxford, where I regularly encounter my identity, as it is perceived outside our national borders. Abroad, my primary identifier is no longer the province I grew up in or where my parents come from, but my nationality as a Canadian. Limiting my right to vote indicates I’ve lost touch with this national identity when, in fact, I renegotiate it every day against its reflection, mirrored to me in my international colleagues’ perceptions of Canada.

I’m hardly alone. A 2010 report by the Asia Pacific Foundation estimated that 2.8 million Canadians live abroad. Comprising about 9 per cent of our national population, our expat community is proportionately larger than that of Australia, the United States, China or India. This group, both substantial in size and highly skilled, should not be treated as a demographic anomaly.

The court’s coming decision demands our collective attention. Our citizenship is enshrined in our constitutional right to vote – in our ability to decide, at election time, what we would like the future of our country to be. By stripping this right away after five years, our government makes a resounding judgment that expatriates are less Canadian because we live abroad.

Limiting voting rights also discourages valuable expatriates from returning to Canada. My departure was incited by educational opportunity: After two years studying politics at Oxford, I’ll spend four years studying medicine at Stanford University. Despite my time away, my right to vote enables me to decide the state of the home I plan on returning to. Under the current legislation, I will have effectively exchanged my graduate and doctoral degrees for that right.

The critique frequently levelled against extending voting rights is that expats have broken the social contract: We do not pay taxes (although most do). But at the heart of this critique rests a dangerous assumption: that constitutional rights ought only to be afforded to those who can pay for them. By this logic, should the impoverished not vote? Do we give the rich more votes? This thinking could set an odious precedent for further excisions of voting rights.

And it would be to Canada’s benefit to expand voting rights beyond geographic boundaries. My status abroad, for instance, facilitates my work on the Ebola virus and antimicrobial resistance, biosecurity threats that don’t know borders. I study and work alongside Canadian expats driven to resolve climate change, cyberattacks, and mass migration – issues demanding global co-operation. A postnational Canada that enables citizens to vote outside of its borders provides international depth to civic engagement – but also supports citizens living overseas and confronting global challenges.

Beliefs that Canada is a nation-state bounded by its geography do more harm than good. Being Canadian is not about where you live: It’s about contributing to, improving, and stewarding a community forward through challenges, domestic and abroad. Whatever Canada is in the future, it is ours together – and our voting rights need to reflect that.

Source: Why should Canadian expats suffer for suffrage?

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.

2 Responses to Supreme Court rules voting restrictions on expatriate citizens are unconstitutional

  1. Jack says:

    Speaking of voting, nice contribution, Andrew, to Cross Country Checkup.

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