“A Profound Attachment”

The Supreme Court holds that disenfranchising Canadians abroad is unconstitutional

Yesterday, the Supreme Court at last delivered its judgment on the constitutionality of disenfranchising Canadians abroad, Frank v Canada (Attorney General), 2019 SCC 1. By five votes to two, the Court holds that disenfranchisement is indeed unconstitutional. This is, as I have long argued (especially in criticizing the decision to the contrary by the Court of Appeal for Ontario), the right result. Full disclosure, in case this is necessary: I am myself a Canadian abroad, and while I would not have been disenfranchised at the coming election under the rules the Supreme Court has found unconstitutional, and am only an occasional and reluctant voter anyway, I am emotionally invested in this issue.

Section 3 of the Canadian Charter of Rights and Freedoms provides that “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” The Canada Elections Act sets out the details of how this right can be exercised ― and denies it to some groups of citizens. One of these disenfranchised groups consists of Canadians who have not resided in Canada for more than five years, although those who are representatives of a Canadian government or members of the Canadian forces, as well as members of such persons’ families, are not subject to disenfranchisement.

The government conceded that denying their right to vote breached section 3 of the Charter, but contended that the breach was justified as a reasonable limit authorized by the Charter‘s section 1. The majority ― Chief Justice Wagner (who wrote the majority opinion) and Justices Moldaver, Karakatsanis, and Gascon ―, as well as Justice Rowe, who concurs, reject this view. In dissent, Justices Côté and Brown say that the denial of the franchise to Canadians abroad is justified.

Relying on the Court’s decision in Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519, which invalidated the disenfranchisement of long-term prisoners, the Chief Justice writes that the right to vote must be given a “broad and purposive interpretation”, and “any intrusions on [it] are to be reviewed on the basis of a stringent justification standard”. [25] The Chief Justice rejects deference to Parliament, insisting that “reviewing courts must examine the government’s proffered justification carefully and rigorously”. [43] Unlike in cases that involve “complex” or “nuanced” choices among competing priorities, deference “is not the appropriate posture for a court reviewing an absolute prohibition of a core democratic right”. [44] Later, however, when considering whether the prohibition is “minimally impairing” of the right, the Chief Justice grants that “some deference must be accorded to the legislature by giving it a certain latitude”. [66]

As for residency requirements for voting, they are “an organizing mechanism”, “an important device” [28] that helps structure our electoral system, but have no constitutional value in themselves: “In clear language, the Charter tethers voting rights to citizenship, and citizenship alone.” [29] In any case, there already are Canadian citizens who are allowed to vote from abroad, suggesting that residence within cannot be an implicit pre-condition for having the right to vote.

Applying the test for the justification of Charter infringements set out in R v Oakes, [1986] 1 SCR 103, the Chief Justice begins by rejecting the idea, accepted by the Ontario Court of Appeal, that “preserving the social contract” whereby citizens’ obedience to laws is exchanged for a say in making them as a pressing and substantial objective capable of justifying the infringement of rights. While Sauvé had invoked the language of social contract theory, correctly understood, it stands for the proposition “that deeming that a citizen has ‘withdrawn’ from the social contract is not a legitimate basis for denying him or her the right to vote”. [52] However, the Chief Justice accepts that “maintaining the fairness of the electoral system to resident Canadians”, [55] which he seems to interpret by focusing on the existence of a connection between voters and the Canadian polity, is an important governmental objective.

At the second stage of the Oakes test, Justice Wagner finds that the government “has not definitively shown that a limit of any duration” on the ability of Canadians to vote from abroad “would be rationally connected to the electoral fairness objective advanced in this case”, [60; emphasis in the original] but declines to reach a firm conclusion. He argues, however, that neither the existence of residence requirements for voting in provincial elections nor the prevalence of such requirements abroad make their imposition by Parliament rational, and observers that “there is no evidence of the harm that these voting restrictions are meant to address”, [63] or even any complaints about those non-resident citizens who already are able to vote.

As often, it is the next stage, originally described as that of “minimal impairment” although the word “minimal” has not been taken literally, that is crucial. The Chief Justice finds that disenfranchising Canadians after five years abroad, “[f]ar from being a measure that is carefully tailored so as to impair voting rights no more than is reasonably necessary, … seems to have been simply a ‘middle-of-the-road’ compromise”. [67] There is no “correlation between, on the one hand, how long a Canadian citizen has lived abroad and when he or she intends to return and, on the other hand, the extent of his or her subjective commitment to Canada”. [68] Indeed, whether the issue is knowledge of and commitment to Canada, the impact of Canadian laws on a given voter, many Canadians abroad will be better qualified as voters than those residing in the country. Chief Justice Wagner concludes by noting that “[a] non-resident citizen who takes the trouble to vote by way of special ballot … has demonstrated a profound attachment to Canada. We have nothing to gain from disenfranchising such citizens.” [75] In the same vein, he notes that any positive effects of this disenfranchisement are speculative, while the negative impact on those disenfranchised is real and present.

Justice Rowe agrees that disenfranchising Canadians who live abroad is unjustified, but writes separately to emphasize the “significance and centrality of residence to our system of representative democracy”. [84] He details the history of residency requirements in Canadian election legislation (including the slow expansion of voting rights for Canadians abroad), and pointedly rebukes the majority by claiming that “residence has been historically and remains today more than just an ‘organizing mechanism’. It is foundational to our system”. [90] As a result, Justice Rowe says, while “[s]ection 3 [of the Charter] protects the right to vote … it does not follow as a corollary that there is a right to vote in the constituency or province of one’s choosing”. [91] Provincial and territorial residency requirements, in particular, would be subject to different considerations than federal ones (including because provincial laws are more local in nature and applicability than federal ones).

Whatever might be justifiable in other cases, however, Justice Rowe concludes that the disenfranchisement of long-term expatriates is not. He accepts that it pursues the objective of electoral fairness, although he notes that fairness for resident citizens is being pursued at the expense of non-residents. Justice Rowe also accepts that fairness can reasonably be pursued by preventing “those who are largely unaffected (non-residents) [from] participating in decisions that would affect others (residents)”. [103] Passing over the question of whether the disenfranchisement of Canadians abroad is minimally impairing of their right to vote, he moves on to the balancing of its salutary and deleterious effects. The former, he finds, are “negligible”, [106] since very few expatriates actually vote. The latter are not. Expatriates who are disenfranchised “may not feel the local consequences of particular federal policies in the constituencies in which their votes would be counted, [but] they stand nonetheless to be affected by certain federal laws and policies, perhaps in life altering ways”. [107] As a result, the disenfranchisement of Canadians abroad is not justified.

Justices Côté and Brown dissent. They not only disagree with the outcome reached by the majority and Justice Rowe, but want to approach the issue quite differently. They stress that the right to vote “is a positive right which, unlike most Charter rights, requires legislative specification in order for the right to be operative”, [113; emphasis in the original] so that the denial of the franchise to expatriates is not the product of legislative action, but of a “failure to extend the right to vote” to them. [128] This right is also not absolute: “Nobody suggests that s[ection] 3 entitles three-year-old Canadian citizens to vote.” [114] Indeed, they deny that the legislative provisions at issue “disenfranchise” long-term expatriates, since they had not been allowed prior to these provisions’ enactment, or ever. They also accuse the majority (and, implicitly, any number of past judgments) of “distort[ing] the limitations analysis” [120] by speaking of a “breach” or “infringement” of the right to vote rather than of a “limitation” on this right, as the terms of section 1 of the Charter would suggest. (A breach, they insist, is caused by a limitation that is not justified.)

Thus the real question, Justice Côté and Brown argue, is whether the long-term expatriates’ right to vote has been reasonably limited. The way to answer this question is to apply the Oakes test. However, while they make a point of agreeing with the majority that the burden of justification under this test rests on the government, Justices Côté and Brown insist, citing the dissenting opinion in Sauvé (without acknowledging that they are relying on the dissent) on “a ‘flexible contextual approach’ … one that eschews rigid and technical application”. [124, citing Sauvé at [84]] They also argue that it is wrong to look for “a concrete problem or mischief” that rights-limiting legislation is meant to address, because it is “undeniable … that Parliament can constitutionally legislate in pursuit of, or in response to, considerations of political morality or philosophy”. [126] There is “moral nuance inherent in defining and defending the boundaries of rights — that is, in justifying rights limitations” — and, like “Parliament’s policy-making expertise”, it must be “afford[ed] due respect”. [126]

Justices Côté and Brown define Parliament’s objective as “privileg[ing] a relationship of some currency between electors and the communities in which they are eligible to vote”. [132] (In doing so, they spend four extensive paragraphs cautioning against reliance on statements by individual legislators during the course of parliamentary debate… and conclude by pointing to statements that support their understanding of the objective.) This objective “is clearly inspired by a particular moral philosophical understanding of the relationship between citizen and state in a democracy”. [140] Indeed, electoral “legislation is never designed to solve a problem or address a particular mischief. Rather, it breathes life into the right [to vote] so that it may be recognized and exercised.” [142] While limitations on the right to vote require justification, Justices Côté and Brown attack the majority for considering that, other than citizenship, “all other specifications [of this right] are necessarily unconstitutional”. [142] Justices Côté and Brown note that other groups are excluded from the franchise ― they mention citizens who have never resided in Canada and minors ― and argue that these exclusions too must be regarded as examples of Parliament’s permissible pursuit of philosophical objectives. Indeed, they say, majorities in Sauvé and here have acted in furtherance of philosophical views of their own.

Ultimately, ensuring a current relationship between voters and their communities is a pressing and substantial objective because it “ensures reciprocity between exercising the right to vote and bearing the burden of Canadian laws” [152] and “protects the integrity of the Canadian electoral system, which is founded on geographical representation”. [153] This integrity would be undermined by allowing people to vote in constituencies with which they lack a community of interest.

Justices Côté and Brown also consider that the limitation of the right to vote from abroad to those citizens who have not been outside Canada for more than five years is reasonable and therefore proportionate to Parliament’s objective. They insist that, under the majority’s reasoning, no time limit on voting rights could be upheld, including for provincial elections. They add that the majority is wrong to ignore the treatment of expatriates’ voting rights by New Zealand, Australia, and the United Kingdom: “the majority’s patriotism risks descending into exceptionalism”, and blinding it to “some lessons” that “Canada would well have taken … from other countries” [166] (or at any rate from New Zealand, which enfranchised its aboriginal people and women well before Canada did). Indeed, the majority’s position is “highly political, rhetorical”, and “in tension with the majority’s own invocation of internationalism and of a ‘globalized’ world of connectivity and communication”. [167] As for the effects of the legislation, the deleterious ones are minimized since the denial of expatriates’ voting rights “is not … based on moral worth”, [168] while the salutary ones ― which consist in the attainment of Parliament’s objectives ― are considerable.

As I noted at the outset, I believe that the majority is correct (though Justice Rowe makes some valuable points about provinces and territories). The dissent, I confess, perplexes me. But this post is much too long as it is. I shall publish my comment separately ― and quickly, I hope.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

One thought on ““A Profound Attachment””

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s