A Gag after Exit

The federal government knows that it is going to lose the battle over the voting rights of Canadians abroad for over five years, who are now disenfranchised under paragraph 11(d) of the Canada Elections Act. Ontario’s Superior Court of Justice declared this disenfranchisement unconstitutional earlier this year, in Frank v. Canada (Attorney-General), 2014 ONSC 907), a decision that is in my view quite obviously correct. Although its lawyers must have told it that it had no real chances of success, the government appealed and even attempted to have the Superior Court’s decision stayed. The Ontario Court of Appeal denied the stay application in Frank v. Canada (Attorney General), 2014 ONCA 485, with Justice Sharpe casting doubt on the government’s main argument by pointing out that “[i]t is not clear to me how denying a citizen the right to vote can be justified on the basis of electoral fairness” [13]. The appeal  will be heard on the merits this winter.

In the meantime, the government is preparing its fallback position. Rather than welcoming the advance of Canadian citizens who care enough for their country to jump through the procedural hoops required in order to vote from abroad, its Bill C-50, the “Citizen Voting Act,” (a name in keeping with this government’s tradition of deceitful monikers for its legislation) is going to lay down a minefield so vast that the vast majority of Canadians abroad, regardless of the amount of time they’ve been out of the country, will not be unable to cast their ballots.

Some initial reactions to the bill were actually positive. The CBC’s Kady O’Malley quotes the NDP’s Democratic Reform Critic Craig Scott as declaring himself “pleased that the government appears to have finally decided to comply with the court ruling that found that it is unconstitutional to exclude any citizens living abroad from voting,” But appearance, as Mr. Scott has perhaps already found out, can be deceiving. As Althia Raj explains in her absolutely fantastic, clear-eyed article at the Huffington Post, “[t]he federal government is making it more difficult for Canadian expats to vote.”

It is worth noting, to begin with, that C-50 does not do away with the five-year limit on the right to vote of the Canadians abroad. A spokesman has confirmed to Ms. Raj “that the government is ‘not abandoning the appeal.'” The government may be preparing a strategic retreat, but it will leave its lawyers out in the trenches, to fight a hopeless battle to the bitter and unnecessary end. Beyond this non-highlight, the bill essentially does two things. It requires Canadians abroad to provide proof not only of identity and citizenship, but also of their last Canadian address. And it requires them to go through that process at every election.

Subclause 9(2) of Bill C-50 requires Canadians voting from abroad to provide, with their application for a special ballot, “proof of the elector’s identity and of his or her last place of ordinary residence” in Canada. Subclause 9(3) introduces the requirements as to the documents acceptable as proof ― largely the same that apply to electors voting in person pursuant to s. 143 of the Canada Elections Act ― a provision which is amended by clause 4 of C-50 to allow identification issued by Canadian entities (whether governmental or not). The requirements of s. 143 can satisfied in three ways: the easiest is to provide a single government-issued document with both the voter’s picture and his or her address; alternatively, the voter can provide two documents in his name, one of which will also have his or her address; the third is to provide two documents showing the voter’s name, swear an oath as to his or her address, and have another voter, who can provide the necessary documents for him or herself and who lives in the same polling division. It is only the very last criterion that is, so far as I can tell, relaxed for Canadians voting from abroad: there is no requirement, in C-50, that the person vouching for them live in the same division, or even in the same riding, as they ― only that they know their last place of ordinary residence (and be able to confirm it on oath!).

Clause 8 of C-50, which only allows a Canadian living abroad to vote in an election “if his or her application for registration and special ballot,” complete with all the required documents, “is received at the office of the Chief Electoral Officer after the issue of the writs [for that election] and before 6:00 p.m. on the sixth day before polling day” (emphasis mine) means that the voter must submit all this documentation for every election he or she wants to vote in, and that one cannot register to vote from abroad in advance which, according to Ms. Raj, is what Elections Canada now recommends that voters do. The “register of electors who are temporarily resident outside Canada” which allowed advanced registration, is simply abolished by clauses 6 and 7 of C-50.

At first glance, Bill C-50 only places Canadians abroad in the same position as their fellow-citizens voting in person in Canada, who are also required to prove their identity address at every election. But C-50 is a textbook example of a law that has a wildly disparate impact on two groups whom it purports to treat the same way.

As Ms. Raj points out, Canadians aborad “are unlikely to have a provincial driver’s licence or other government photo ID – which typically expire after five years – or documentation, such as bills with the address of their last place of residency.” Indeed, although it seems safe to assume that (just about) all Canadians living abroad will have at least acceptable piece of identification to prove their identity, namely their passport, it is less clear that they will all have a second one. The list of documents accepted by Elections Canada for this purpose is long, but except for the Social Insurance Number Card, there is little reason why a Canadian who is a long-term resident abroad would have any of these documents issued by a Canadian entity, as C-50 requires.

Furthermore, because it takes time to get one’s application for registration and special ballot to Elections Canada, receive the special ballot, and then send it back again after having filled it in, requiring Canadians abroad to apply for registration at every single election, instead of doing it in advance, means that many voters may simply not have the time to jump through all the procedural hoops in order to exercise their franchise. As a purely practical matter, many voters will no doubt be forced to resort to express delivery services to get their papers to Elections Canada on time, making voting from abroad a very expensive proposition.

The awesome thing about this blatant attempt to disenfranchise Canadians abroad ― awesome in the original sense of the word from my perspective, and in the current from the government’s ― is that it is not obviously unconstitutional. Even though the government seems to have absolutely no evidence that would should why it is necessary, the courts’ assessment of its constitutionality will turn on whether they actually require anything more than bald assertions about the importance of electoral fairness and perceptions of integrity. As Michael Pal has shown, the Supreme Court has seldom required the government to provide solid evidence to justify restrictions on Charter rights in the electoral context. If courts are willing to actually delve into the social science evidence, they will realize that not only is there no real problem of voter fraud that requires legislative action, but also that voter identification requirements do not even make a difference to people’s perception of the electoral integrity. But it’s not impossible that they will, as the British Columbia Court of Appeal did in Henry v. Canada (Attorney General), 2014 BCCA 30, simply accept the government’s claims without critical analysis. (In fairness to the Henry court, it must be said that the evidence of disenfranchisement that the applicants brought forward was almost entirely speculative. Those who will challenge C-50, should it become law, will need to do a better job.)

Yet, as prof. Pal argues, courts need to be critical of the government’s claims, because of what he describes in the abstract of his paper as “the risk of partisan self-dealing by incumbents.” Ms. Raj shows that C-50 is likely to be an instance of this risk having materialized. Having “reviewed the Elections Canada data for 43 [Greater Toronto Area] ridings from the 2011 election,” she found that “[i]n 34 ridings, Liberal candidates received the most votes from special ballots that included Canadian non-residents [as well as other groups voting by special ballot, such as prisoner]. However, the Liberals won only five seats among those 34 ridings.” C-50 is likely (though admittedly not certain, since there is no separate data on the votes of the different groups using special ballots) to disenfranchise a group of voters that disproportionately tilts in favour of the main competitors of the party that proposes it. Convenient, isn’t it?

After the Superior Court’s decision in Frank, I was hoping that Canadians would finally get a right to “voice after exit.” Elections Canada has implemented procedures that allowed Canadians abroad to vote in the recent round of by-elections. But the Conservative government thinks that Canadians abroad should have no say in how a country that remains theirs, and to which in many cases they keep paying taxes, is to be run. The government believes that, instead of voice, Canadians abroad need a gag.

NOTE: Meanwhile, in the UK, Conservative MPs are trying to put an end to the disenfranchisement of British expatriates ― which only starts 15, not 5, years after they leave the country ― and the party has endorsed the idea as part of its platform for next year’s election.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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