Yesterday, the Court of Appeal for Ontario ruled that Parliament can disenfranchise Canadians who live abroad. I summarized the decision, Frank v. Canada (Attorney General), 2015 ONCA 536, in my previous post. Here, I make a number of comments that explain why I believe that the majority is wrong, and Justice Laskin, who dissented ― quite angrily, going so far as to call some of the arguments the majority adopted “inventions” ― is right.
First, the majority’s attempt to tie the right to vote to a “social contract” in which one participates by obeying the laws of Canada and paying taxes to Canadian authorities fails not only because the constitutional text explicitly ties it to something else ― namely, citizenship ― but also because our political practice does as well. Permanent residents too must obey the laws and pay taxes, but they lack the right to vote, no matter how long they have lived in the country. Many permanent residents will have plenty of relevant knowledge, and be affiliated in a myriad informal ways with their communities and even Canada as a whole, in addition to obeying the laws, which the majority says are the things on which “the right to vote is premised.” [91] Yet they lack this right. That’s because, contrary to the majority’s assertion, that right is premised on something else.
A second, related, point, is that tying the right to vote to obedience to laws and, especially, to paying taxes, can just as easily serve to disenfranchise Canadians in Canada as those abroad. People who live on the margins of society, perhaps in a more or less deliberate attempt to avoid the reach of its laws, or those who do not make enough money to pay much (if any) tax, could be deemed less worthy of the franchise than other Canadians. As Justice Laskin points out, both the evolution of our electoral laws and the Supreme Court’s decision in Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68 suggest that this reasoning is unconstitutional.
Third, the majority is wrong to invoke the fact that Canadian laws tend not to reach outside Canadian borders as a reason for restricting the expatriates’ right to vote, because that is just a contingent fact about Canadian legislation as it exists now, which can neither be taken for granted nor used to justify the curtailment of a constitutional right. As a matter of law, Parliament is free to legislate extraterritorially. It could, if it wishes, require Canadian citizens who live abroad to pay taxes to Canada on their foreign income ― as the United States requires its expatriates to do ― at its next session. To say that because Parliament does not do so now, Canadians abroad need no voice in electing its members is to let the statutory tail wag the constitutional dog.
Fourth, the majority’s description of the “social contract” as an exchange of obedience to laws, especially fiscal laws, against the right to vote assumes away many important functions of government that continue to affect Canadians who live outside the reach of most Canadian legislation. While it is true that we only (directly) elect legislators, whose main function is to enact laws, we cannot be blind to the fact that in our constitutional system, Parliamentary elections also serve to elect, albeit indirectly, the executive. The executive, in turn, defines foreign policy, and is responsible for a variety of decisions that affect Canadians who live abroad. Will you be evacuated or otherwise helped in a crisis? How will your consulate be staffed? What sort of attitude will you be confronted with at the border when you travel home? And even, what will people think of you when, to the inevitable “where are you from,” you answer, “I’m Canadian”? The answers to these questions depend, if only indirectly and partially, on the results of elections, and thus give Canadians abroad a stake in the government of their country which the majority simply ignores.
Fifth, as Justice Laskin suggests, the sort of country they will return to matters to Canadians who live abroad, no matter how long they do so. The laws enacted today will continue to apply for years, maybe decades, to come. Path dependency is no less real in public policy than in our private lives. Being deprived of a say in the government of Canada today means that you lose that meagre measure of control over its future to which other citizens are entitled, even though you have the same right as they to live there. Indeed, one is entitled to vote, in Canada, on the eve of one’s permanent emigration from the country, but not, outside Canada, on the eve of one’s permanent return.
Sixth and last, at a more philosophical level, the majority’s understanding of the “social contract” is also problematic in its exclusivity. For the majority, one is either a member of the Canadian social contract or of that of some other country. Attachment to more than one society is impossible. If one lives abroad long enough, one simply withdraws from the Canadian social contract, even if one does not become a citizen of one’s new country of resident, and even though, as the majority recognizes, it is quite possible to maintain a subjective attachment to Canada from abroad. Indeed, subjective perception is insignificant. You may consider yourself Canadian, but objectively, you are not. I think that this is a condescending attitude to take, and it is not the least regrettable of the many regrettable features of the majority opinion.
I can only hope that the respondents have the stomach, and the resources, for keeping up their fight (they are, according to a website set up by their lawyers, “considering next steps.”) I can also only hope that the Supreme Court will actually agree to hear their appeal, should they file one. I have, however, no doubt as to what the outcome of such a hearing, if it takes place, ought to be.
Double Aspect 
It is hard to reconcile this with the basic observation in Corbiere that there mere fact that a member of a band is removed from the reserve does not mean that their connection to the reserve as their homeland is severed or reduced so as to make disenfranchisement appropriate.
This decision is the logical endpoint though in the change in our political dialogue that began in the 1980’s in a serious way. In the early years of the confederation we were “British subjects” joined together in building a new county within an Empire. Over time this evolved into the concept of citizenship in this new country called Canada and we celebrated — in a typically muted Canadian way — the concept of citizenship. In some ways this reached its peak in the late 1960’s and into the 1970’s but became frayed as Quebec nationalists began to resist common citizenship quite aggressively and the right began to focus on the idea of the all mighty “taxpayer”. No longer did we owe our fellow citizens and our government exist to serve the citizens. Instead governments serve and are accountable to the “taxpayers”. Those citizens who are not “taxpayers” — or, more to the point pay marginal taxes — are less worthy and should have less of a say in the government of our nation.
Corbiere is really interesting, and I have to admit that I never thought of it (nor, it would seem, have any of the parties or judges!). But I’m not sure it really disposes of the issue. The majority says that
“We are satisfied that the restriction on voting is rationally connected to the aim of the legislation, which is to give a voice in the affairs of the reserve only to the persons most directly affected by the decisions of the band council. It is admitted that although all band members are subject to some decisions of the band council, most decisions would only impact on members living on the reserve. The restriction of s. 15 rights is however not justified under the second branch of the s. 1 test; it has not been demonstrated that s. 77(1) of the Indian Act impairs the s. 15 rights minimally. Even if it is accepted that some distinction may be justified in order to protect legitimate interests of band members living on the reserve, it has not been demonstrated that a complete denial of the right of band members living off-reserve to participate in the affairs of the band through the democratic process of elections is necessary. Some parties and interveners have mentioned the possibility of a two-tiered council, of reserved seats for off-reserve members of the band, of double-majority votes on some issues.”
Whether and how that maps onto the federal electoral process is by no means clear.
As for the grand narrative… maybe you’re right, but I am, in some ways, closer to the “right” you describe, and still don’t agree with the Court at all.
As with all legal analogies there is little chance that anything is disposed off definitively in this day and age (indeed given the weakening of stare decisis even cases that are on all fours are not necessarily dispositive.
I actually do not think the drift away from “citizen” to “taxpayer” is a pure left-right issue. On both sides of the political spectrum there are reasons to want to appeal to concepts of citizenship. For example, when it comes to calls for resistance to terrorism or loyalty to the goals of the nation citizenship is a much stronger spell to conjure with rather than calling upon your investment in the nation as a taxpayer ….
Given that the inclusiveness of the right to vote has increased by several orders of magnitude since 1215 I was disturbed to realize that in my country (the US) some citizens right to vote have been permanently revoked because of criminal convictions. Now we have some senators (Schumer and Cruz) who
want to rescind some rights/privileges of US citizens who “turn their backs on their country” by living abroad. King John would be proud.
For my part having spend half a century paying taxes to the government of the US in addition to having been drafted into the military in 1966, serving four years in the military, I consider any such restrictions of my rights and privileges to be an ex post facto abrogation of the “social contract” that I, and others like me, have upheld at considerable personal cost for the last half century. Citizenship comes with obligations, costs, and disadvantages as well as privileges and benefits. At seventy years old I confess that I have contributed to the wealth and security of my country as much as I can. Now I have no choice or ability to do anything other than to “suck on the teats of society” as no doubt the likes of Cruz and Schumer would like to pontificate.
You have used my blood and treasure and now you want to welsh on your part of the deal. You ungrateful one way blood suckers. Who is turning their back on whom? Who is being unpatriotic and anti-social? If lumping veterans and other law abiding citizens with disenfranchised criminals by subjecting them to the same restrictions isn’t bad faith, what is? My guess is that even King John would turn over in his grave from shame.
Oh, you claim I am being too harsh. You claim that your intensions were good? Satan is reputed to take some satisfaction from the fact that the road to his home is paved with splendid motivations. Repent ye self-righteous men of little faith. Why are ye afraid of me?
No, I am not an ex-pat but I do object to restricting my and others hard earned rights and benefits. I hold with Einstein that “Those who will not stand up for their rights, and the rights of others, deserve nothing better than the slavery which is intended for them.”
Yes, you are right, your idea strikes a nerve. Perhaps you should think twice.