Civics, Feelings, and Politics

Expatriates’ alleged lack of connection to particular ridings is not a good reason to disenfranchise them

When it held, in Frank v Canada (Attorney-General), 2019 SCC 1 (summarized here), that denying the franchise to Canadians who have been resident abroad for more than five years is unconstitutional, did the Supreme Court go with “feelings over civics”? Did it decide the case in a way that ignores the fact that Canadians vote not for national parties but for candidates in local constituencies, to which expatriates are not meaningfully connected, even if they maintain, as the Court’s majority said, a “profound attachment” to Canada? Over at Routine Proceedings, Dale Smith argues that that’s precisely what the Court did. I disagree.

As Mr. Smith sees it, “five of seven justices of the Supreme Court failed to properly understand the importance of constituency-based democracy”. He also faults the government’s lawyers “for not making the case adequately either”, “and virtually all of the commentary” on Frank, including presumably my comment, for ignoring the issue. Yet in his view, it ought to have been a decisive consideration:

[W]e vote for local representatives. We don’t vote for parties, or party leaders, no matter what we may have in mind when we go into the ballot box – we mark the X for the local candidate, end of story. For an expat, it’s not the connection to Canada that should be at issue – it’s the connection to the riding, because that’s how we allocate our votes.

One might, of course, reproach the government lawyers for failing to emphasize this particular rationale for disenfranchising Canadians abroad. The Frank majority, even on this view, is blameless, because it wasn’t at liberty to sustain the disenfranchisement on the basis of a justification that the government did not even put forward. Section 1 of the Canadian Charter of Rights and Freedoms provides that limits on Charter rights, including the right to vote, must be “demonstrably justified” ― and as the Supreme Court has long held, it is the government that must carry out the demonstration. But there are other reasons, based in both what we might (loosely) call civics and feelings, as well as some realism about politics, that mean that, had the government chosen to make connection to the riding as the hill its case would die on, this case would be every bit as dead as it now is.

Start with the civics. Mr. Smith is quite right that, in point of law, we vote for local representatives, not for national parties or their leaders. Whether this ought to matter as much as he suggests, I will discuss below, when I turn to politics. But it’s important to consider a couple of other legal issues.

First, though there seems to be a good deal of confusion or even obfuscation on this point, the Canada Elections Act already takes care of the need for a connection between a Canadian voting from abroad (who may be a short-term expatriate, a long-term one previously allowed to vote, such as a diplomat’s family member, or a newly-enfranchised long-term expatriate). Paragraph 223(1)(e) provides that, when applying to be registered as an elector resident outside Canada and requesting to vote by special ballot, a would-be voter must provide the Canadian address to which his or her vote will be tied. Once the choice has been made, section 224 prevents the voter from changing it. This prevents forum shopping, as it were, and seems a sensible regulation.

Now, there is a range of options for the prospective voter from abroad to choose from:

the address of the elector’s last place of ordinary residence in Canada before he or she left Canada or the address of the place of ordinary residence in Canada of the spouse, the common-law partner or a relative of the elector, a relative of the elector’s spouse or common-law partner, a person in relation to whom the elector is a dependant or a person with whom the elector would live but for his or her residing temporarily outside Canada.

It has been put to me that the breadth of this range is excessive and gives the elector too much choice. If Parliament agrees, it can eliminate some superfluous options by legislation; this should not be constitutionally problematic. But I don’t think that Parliament should do this. On the contrary, giving the voter the ability to tie his or her vote to a former residence or a family member’s one makes it more likely that the elector will choose to vote at the particular place in Canada to which he or she is feels the strongest connection, which will not be the same for all expatriates, and which each voter is much better positioned to figure out when registering than Parliament when legislating.

Second, one must keep in mind that when it comes to voters in Canada, the law does not require any sort of evidence of a connection between the voter and his or her riding other than the fact that the voter resides there. Perhaps that’s because residence is simply deemed to be determinative of the community to which the voter belongs. But this seems a very rough assumption, especially in today’s urbanized world, in which many ridings are quite compact and the boundaries between them, fluid. A voter might be live in a bedroom community or a residential neighbourhood, but work in a downtown in a different riding, and perhaps have other attachments in yet a third one. It is, to say the least, not obvious which of these the voter is genuinely connected to. Residence, arguably, is only the most easily administrable way of sorting voters into ridings (both at the point of counting them through the census and at the point of registering them), simply because it tends to be more stable than other connections. As Chief Justice Wagner, writing for the Frank majority, put it, “residence can best be understood as an organizing mechanism for purposes of the right to vote”. [28] It is nothing more than that.

This brings me to what Mr. Smith might calls “feelings”. He and others who defend the disenfranchisement of Canadians abroad are very quick to demand that expatriates meet conditions that are not imposed on other Canadians to qualify for the franchise. Whether it be some subjective connection to a riding or to Canada as a whole, or knowledge about the local state of affairs, or tax liability, or subjection some undefined but substantial number laws, not all residents will meet these conditions that are said to justify denying the franchise to expatriates. But no one thinks to inquire into whether they really do, and no one, I’m pretty sure, would accept (re-)introducing tests of this nature into our election laws. Expatriates are the only people whom people judge on such criteria.

Indeed, it is not so much a judgment as prejudice. Expatriates are simply assumed to fail such tests ― and arguments to the contrary are dismissed as “feelings”. Mr. Smith guesses that Canadians who live abroad cut themselves off from communities where they used to live, or have family, or intend to return (or all of these things). Why? My personal experience, for what that’s worth, is that I keep up with the news from Québec and Montreal (and occasionally write on Québec-specific issues), more than from other provinces. Do I specifically track the news for Notre-Dame-de-Grâce-Westmount, where my parents live and I will vote in October, if I can be bothered? Not particularly, but then again, I wouldn’t even if I actually lived there. To say that I’m not a suitable voter for this reason would be applying a groundless double standard.

And speaking of double standards (and, I suppose, of civics), it’s worth noting that pursuant to section 222 of the Canada Elections Act some long-term expatriates are already allowed to vote: namely, members and employees of the Canadian forces, federal provincial public servants, employees of “international organization[s] of which Canada is a member and to which Canada contributes, as well as anyone who “lives with” such voters. The rationale for this is, presumably, that all such persons ― not just public servants, mind you, but their family members too ― are deemed to maintain a connection with Canada that other expatriates lack. Yet even assuming that this is so, is it remotely plausible that such persons (who, if anything, probably tend to be more mobile than the average voter even when they live in Canada) maintain their special connections to their home ridings? I really don’t think this is plausible, and so, the invocation of the riding connection as a justification for disenfranchising some, but not all, expatriates is another sort of unwarranted double standard.

Let me finally turn to politics ― and, specifically, to the need to be realistic about it. If we want to understand the rules of elections and government formation in Canada, we must keep in mind that each voter only casts a ballot for a local representative, not (directly) for a party or Prime Minister. But if we want to figure out whether Parliament is justified in preventing a person or a class of persons from voting, I don’t think it makes sense to pretend, as Mr. Smith asks us to, that this is all that matters. The reality, as he more or less acknowledges, is that what we “have in mind when we go into the ballot box” ― or at least the voting booth, for the less acrobatic among us ― very much has to do with parties and, especially, their leaders, for most voters.

Political parties themselves know this. The big ones tried to prevent to keep the small ones from getting their names on ballot papers, until the Supreme Court wisely put an end to that in Figueroa v Canada (Attorney General), 2003 SCC 37, [2003] 1 SCR 912, because candidates not identified with parties get fewer votes. They give pride of place to party names, logos, slogans, and leaders in their advertisements. They make sure their MPs have lookalike websites in party colours. Local candidates are often little more than props for a leader’s tour. I’m too lazy to look for the relevant research (if it exists) right now, but as a not-so-wild guess, I’m inclined to think that many voters don’t even remember the name of their local candidate when they go vote. This may be regrettable, but the parties themselves have ensured that it doesn’t matter; what does matter is the party identification on the ballot paper.

One key reason for this is that election campaigns are largely national events, not local ones. (By way of thought experiment, imagine we didn’t hold simultaneous general elections, but renewed the House of Commons with staggered elections, one riding at a time. Our politics may well be quite different ― and more local. But of course we don’t do that.) The centrality of leaders’ personalities to election campaigns makes this unavoidable, and an even starker phenomenon than in the past. But even to the (limited) extent that voters are preoccupied with actual issues rather than personalities, the issues are largely national in scope. This is perhaps especially the case in federal elections, since Parliament’s powers are, by design, largely those that concern the country as a whole. Admittedly Parliament doesn’t always keep to its jurisdiction. Even when it does, Justice Rowe points out in his concurring reasons that “federal policy can impact different geographically defined communities in different ways”. [89] Still, federal elections aren’t about the quality of your local school or the regularity of garbage removal from your street. Most voters, especially in federal elections, just aren’t especially concerned with riding-level matters. To say that expatriates, and only expatriates, ought to be disenfranchised because they aren’t is, once again, to apply an unwarranted double standard.

The existing law already ensures that Canadians voting from abroad cast their ballots in the ridings to which they have the strongest connections. At the same time, it does not require the existence of a very meaningful connection between any voters, including those resident in Canada, and their ridings. The idea that expatriates should be prevented from voting because they lack such a connection is thus a double standard. Moreover, Canadian elections, especially federal ones, aren’t local affairs anyway. For all these reasons, had the government argued that Parliament was entitled to deny expatriates the franchise because of their supposed detachment from the ridings in which their votes would be counted, it would have fared no better than it actually did in Frank.

Doing Right on Rights

Why the Supreme Court was right to find the disenfranchisement of Canadians abroad unconstitutional

In my last post, I summarized the majority, concurring, and dissenting opinions delivered in Frank v Canada (Attorney General), 2019 SCC 1, which held that the denial of the franchise to Canadians who have resided outside the country for more than five years is unconstitutional. As noted there, I believe that the majority, whose opinion was delivered by Chief Justice Wagner was correct so to hold. In this post, I explain why, and also make some observations about the strongly-worded dissent by Justices Côté and Brown. To make my biases clear once again, I remind readers that I am a Canadian abroad myself, and have been for six of the past eight years. While I vote rarely and reluctantly, I am emotionally invested in the issue of whether my right to do so can be taken away. Feel free to discount the following accordingly.

While I am the subject of emotions, let me say this. Justices Côté and Brown assert that the denial of the right to vote to Canadians abroad “is not a distinction based on moral worth”. [168] By my lights, that’s precisely what it is. On their own view, it is the product of “normative conceptions of what the Canadian political community is, and how it can best be protected and made to flourish”. [139] The conception embraced by Parliament in enacting the provisions invalidated in Frank sees the Canadian political community as excluding Canadians abroad, who are consequently less worthy of the franchise. Indeed, they are, according to the dissent, a threat from which the community must be protected, since it is “unfair to Canadian residents for their lawmakers to be elected by long-term non-residents who have no connection of any currency to their electoral district”. [153]

This is utterly wrong. As the Chief Justice rightly observes, many Canadians who live abroad maintain strong ties with Canada (and, I would add, often with the local community where they used to live and, in many cases, intend to return). As the Chief Justice also says, “[c]onversely, there may be citizens who have never left Canada but whose subjective commitment to the country is much weaker and who are less well versed in local issues”. [68] Indeed, though it would be impolitic for a judge to say so, “may be” in this sentence should read “obviously are”. As, for example, Ilya Somin and Bryan Caplan respectively have shown, voters are both ignorant and irrational ― rationally so, but ignorant and irrational all the same. Yet we would not generally accept disenfranchising voters on that basis; we do not inquire into the degree of connection a voter has with his or her local community, or the country, before issuing him or her a ballot paper. It is only, it seems, in the case of expatriates that these things actually matter. To me, this is strong evidence that what is at work here is not really a concern with the fairness or integrity of Canada’s electoral system, but a judgment, or rather prejudice, about the moral worth of those Canadians who are taken to have left the community, and must “rejoin[]” [153] before being allowed to take part in the community’s affairs.

Now, it is true that most Canadians abroad do not, in fact, go to the hassle and the expense of requesting a special ballot and returning it to Elections Canada. This means, of course, that the idea of non-resident voters swamping elections and deciding them at the expense of residents is far-fetched if not entirely implausible. But more importantly, as the Chief Justice points out, this means that those who do take the trouble value their involvement in Canada’s political life ― probably more so than a great many of their resident fellow-citizens. In the Chief Justice’s words, they “demonstrate[] a profound attachment to Canada”, [75] and it seems absurd to pretend otherwise on the basis of no evidence whatsoever.

This brings me to another issue: that of the correct approach to deciding whether legislation is unconstitutional because it unjustifiably contravenes the Canadian Charter of Rights and Freedoms. Justices Côté and Brown issue what they regard as a profound challenge to the way we not only discuss but also think about the relationship between Charter rights and policies that interfere with them. They note that it is commonplace to speak of such policies as “infringing” or even “violating” rights, only for these “infringements” or “violations” to be upheld, or “saved” by applying section 1 of the Charter. Yet, as they further point out, section 1 provides that the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” ― limits, not infringements or violations. So we should stop talking about justified infringements, and talk about limits instead. The majority is not interested, observing that the words “limits” and “infringements” have long been used interchangeably. (The Chief Justice is probably too polite to note this, but I am not: Justices Côté and Brown themselves spoke in terms of “infringement” as recently as seven months ago, in their excellent dissent in Law Society of British Columbia v Trinity Western University, 2018 SCC 32.)

I take the dissent’s textual point. The word section 1 uses is “limits”, and it arguably makes more sense to say that the state can justifiably limit rights, not that it can violate them. But I fail to see what great change to the way we actually think about rights and scrutinize the state’s possible interference with them follows from this. Contrary to some, indeed quite a few, of the participants in this blog’s recent 12 Days of Christmas symposium, Justices Côté and Brown show no interest in reconsidering the test for verifying the permissibility of limitations on rights that was first set out in R v Oakes, [1986] 1 SCR 103. They apply the same proportionality analysis, warts, subjectivity, and all, under the label of assessing the “limit” on the right to vote as the majority does when considering “infringement” of this right. They have much to say about the fact that the right to vote is a “positive” one, requiring legislation to “breathe[] life into” it, [142] but that it is true of many of the rights the Charter protects (notably, but by no means only, the various rights of criminal suspects and accused) and, more importantly, it simply does not follow that the legislation that “breathes life into the right” may not fail to do so to a constitutionally required standard. (Similarly, Justices Côté and Brown point out that the legislation imposing a five-year expiry period on expatriates’ franchise replaced that which gave no expatriates the vote. So what? The test of constitutionality is not whether Parliament comes closer to respecting the Charter than it once did, but whether it respects the Charter now.)

The real methodological disagreement between the dissent and the majority (as well as Justice Rowe’s concurrence) has to do with the level of deference each accords Parliament. The majority insists, at the outset, that “[a]ny limit on the right to vote must be carefully scrutinized and cannot be tolerated without a compelling justification”. [1] Although, as noted in yesterday’s post, it later wavers a little on this point, its approach is, indeed, one that refuses to take the government’s claims about the need for or usefulness of the legislation it examines on faith. By contrast, the dissent waxes deferential, “eschews rigid and technical application” [124] ― it’s not quite clear of what, but presumably of the justification requirements ―, and plays up “Parliament’s policy-making expertise”. [126]

Yet here the dissenters’ professed textualism fails them. To repeat, section 1 of the Charter says that “only such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (emphasis mine) can be countenanced. The constitutional text, therefore, requires a demonstration ― not judicial acquiescence on the basis that Parliament knows best. And this requirement, in turn, suggests that contrary to what Justices Côté and Brown say Charter rights can only be limited in order to deal with an identifiable problem, to address some specified mischief, and not merely because a legislature thinks that in an ideal political community these rights would be limited in this way. The enactment of the Charter, as a law superior to ordinary legislation, has taken that moral judgment out of the Canadian legislatures’ hands. (To be clear, this is a separate question from that of the permissibility of what used to be called “morals legislation”, which proscribes what the legislature sees as immoral behaviour, such as taking drugs. There is no argument that expatriates act immorally by voting.)

In short, by all means, let’s be careful with our language, and speak of reasonable limits on rights instead justified violations. But let’s also insist that limitations on rights, to qualify as reasonable, must be ones whose justification is capable of being demonstrated, rather than merely asserted, and is in fact demonstrated, rather than taken for granted. Indeed, I think that this substantive concern is rather more important than the semantic one. In Frank, it is the majority, not the dissent, that follows an approach that is closer to that required by the constitution.

In my view, the majority decided Frank more or less as it should have. It correctly insisted that any exclusion from the franchise except the one based on citizenship must be justified. Contrary to the dissent’s strident warnings, it does not follow that no exclusions could ever treated as reasonable limits ― only that the justification process for upholding these limits cannot be elided by saying that some limits on the right to vote must obviously be admissible. This goes even for the denial of the right to vote minors (which, as Ilya Somin, for example, has argued, is not as self-evidently reasonable as the dissenters would like us to think). I think that it would be quite easy to sustain the disenfranchisement of three-year-olds, the dissent’s scaremongering example, should anyone challenge it; but as for the denial of the vote to teenagers, I for one wouldn’t mind seeing the governments put through their justificatory paces.

The majority is also right to be skeptical of the government’s arguments based on an ill-defined “social contract” of which expatriates are allegedly no part. I’m not too impressed with the Chief Justice’s definition of Parliament’s objective in terms of “fairness” ― fairness is too capacious a word for my liking, and the dissent’s suggestion that Parliament was pursuing a currency of relationship between the voter and his or her community seems closer to the mark. But one should also acknowledge that objectives that are largely symbolic (or, as Justices Côté and Brown see it, moral) do not lend themselves to easy definition, and so inevitably compromise the quality of the Charter analysis. The majority’s skepticism about the existence of a rational connection between the objective of fairness and disenfranchisement of Canadians abroad is also warranted. Indeed, I would have liked the Chief Justice to have been bold enough to say that, given both the possibility that expatriates maintain current links with Canada and their Canadian communities, and the lack of any assessment of whether any other voters do so, disenfranchising expatriates alone based on their deemed lack of connection to Canada is actually irrational. But the Chief Justice is not the first judge not to want to go there.

I’ll live with that, because the Chief Justice ends up making the right arguments at the “minimal impairment” stage of the analysis. Like I had in criticizing the decision of the Court of Appeal for Ontario in this case, he points out that Canadians abroad can and do maintain close links with Canada; that they are affected by Canadian laws and government policies; that, moreover, “Parliament can change laws on its own initiative and thus alter the extent to which Canadian legislation applies to non-resident citizens”, [72] so that one cannot invoke the limited scope of current extra-territorial legislation to deny expatriates the vote ― I had called this “let[ting] the statutory tail wag the constitutional dog”; and that in any event “attempting to tailor Charter rights to the extent to which citizens are burdened, or not burdened, by Canadian laws would be an impossible exercise”. [71] If all this is not enough to qualify the disenfranchisement of expatriates as irrational, than it certainly suffices, as the Chief Justice says, to show that it is grossly overbroad, and not “minimally impairing” of the right to vote.

The Chief Justice’s reasons are not perfect. He does, as the dissent points out, get somewhat carried away in patriotic praise for the Canadian democracy, and there are shades of what I’ve been calling “constitutionalism from the cave” in his claim that “a broad interpretation of” the Charter‘s guarantee of the right to vote “enhances the quality of our democracy and strengthens the values on which our free and democratic state is premised”. [27] Constitutional interpretation must aim at ascertaining the text’s meaning, not at strengthening values or anything of the sort. Still, what the Chief Justice’s opinion for the majority does is substantially in line with the constitutional text, despite its rhetorical imperfections. (And still on the subject of rhetoric, or style: can someone please ask the Chief Justice and his colleagues to stop using the initialism “AGC”? It is a recent innovation ― the Court hadn’t done it at all before 2010 ― and not a good one. It is ugly and has a jargon-y feel that is quite at odds with the Chief Justice’s stated desire to make the Court’s work more accessible, including to laypersons.) But as majority opinions of Supreme Court have gone in the last few years, the one in Frank is up there with the best.

The Supreme Court has held that Canadians who live abroad cannot be disenfranchised based on, in effect, stereotypes about their lack of relationship with their home country. This is a relief. In doing so, it has insisted on carefully and critically examining the government’s claimed reasons for limiting Charter rights, and this is a good thing too, one that doesn’t happen often enough. There is something to learn from the dissenting opinion, too, about our constitutional vocabulary, and I hope that this lesson is not lost just because the substance of that opinion is bitterly disappointing. But the constitution was upheld in Frank, and so right was done. May 2019 bring more of that.

“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.

Persuasion and Voting from Abroad

When Norman Spector and I debated the disenfranchisement of Canadians abroad on the CBC’s The 180 a couple of weeks ago, he pointed to the fact that some expatriates ― such as Americans he met in Israel while he was Canada’s ambassador there ― vote on the sole basis of the candidates’ policies towards their current country of residence. I replied that there are plenty of single-issue voters in Canada too, and that there is no good reason for treating expatriates differently from them. Life has come up with an ironic twist on this particular argument: an effort is underway in Israel to “to send a small group of Canadians living currently in Israel that will go back to Canada in order to vote in the coming elections [and] encourage the Canadian Jewish Community to go out and vote for him.” The project’s founder, Dan Illouz, claims that “Stephen Harper is Israel’s greatest friend amongst world leaders,” and deserves the Israelis’ help and support.

Mr. Illouz is, clearly, not very well acquainted with Canadian election law, if he thinks that the missionaries he proposes to send to Canada will be able to vote here. They won’t, since they are not registered to do so. He also appears to be unaware if the fact that “[v]oting through absentee,” as he puts it, is not an option available to those Canadian citizens who, like him it would seem, have resided abroad for more than five years. And, while I cannot be sure of that, I somehow suspect that he is equally unaware of Mr. Harper’s government not only having vigorously defended the disenfranchisement of Canadians abroad in the courts, but also having introduced a bill, C-50, that would have made it well-nigh impossible for any Canadian expatriate to vote.

Those Israelis who are contributing to Mr. Illouz’s effort might also want to consider the fact the Canada Elections Act provides that a person who is not a Canadian citizen or permanent resident and does not live in Canada may not “during an election period, in any way induce electors to vote or refrain from voting or vote or refrain from voting for a particular candidate.” Mr. Illouz and his hypothetical emissaries are within their rights, being Canadian citizens, to induce others to vote for Mr. Harper. But to the extent that financial contributions that enable their efforts are themselves a form of “inducement,” those of their contributors who are not Canadian are not. (If you think that’s unjust, consider that the Canada Elections Act also prohibits people who are not citizens or permanent residents from contributing to political parties, and ― after amendments enacted under Mr. Harper’s government ― provides that people who are not citizens or permanent residents and do not live in Canada are not allowed to run third-party election advertising. For my part, I’m not quite sure whether any of these prohibitions are justified, but there they are.)

Anyway, I am writing about this not in order to educate Mr. Illouz and his contributors about Canadian election law, but rather to highlight the inconsistency in that law’s relationship to Canadian citizens who live abroad. They are allowed to contribute to political parties, to advertise during election campaigns (subject to the same, admittedly excessively stringent, limits that apply to all Canadians), and otherwise to seek to influence the outcome of Canadian elections. Yet they are not allowed to vote themselves. Frankly, I don’t see how that makes any sense.

Why Disenfranchising Canadians Abroad Is Wrong

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.

Shut Up!

Yesterday, the Court of Appeal for Ontario ruled that Parliament can disenfranchise Canadians who live abroad. The judgment, Frank v. Canada (Attorney General), 2015 ONCA 536, reverses that of the Superior Court, which had ruled that the provisions of the Canada Elections Act that prevent Canadians who have resided abroad for more than five years are unconstitutional. The majority opinion, written by Chief Justice Strathy, endorses the federal government’s argument that disenfranchising Canadians abroad is the least restrictive means to achieve a pressing and substantial objective of preserving the Canadian “social contract.” Justice Laskin has a forceful, indeed in my view a compelling, dissent.

* * *

For Chief Justice Strathy, the key to the appeal is a “social contract” pursuant to which “[t]he electorate submits to the laws because it has had a voice in making them.” [5] Because expatriates need not “submit” to the laws of Canada, it is fair to exclude them from participating in making them. Citizenship by itself is a guarantee (entrenched in the Canadian Charter of Rights and Freedoms) of some rights. However, “[a]dding a layer to citizenship, residence and physical presence can have an important influence on the rights and obligations of Canadians.” [74] Among other things,

[r]esidents, whether citizens or not, pay the full array of taxes that support government programs. Most important, only residents are regularly required to obey domestic Canadian laws. With limited exceptions, the laws enacted by Parliament do not reach outside Canadian borders. What this means, on a practical level, is that while resident citizens may enjoy greater privileges than non-resident citizens, they also bear greater responsibilities and burdens. [74-75; paragraph break removed]

In particular, “[a]s a practical matter, Canada does not purport to legislate extra-territorially in most cases. Nor does it attempt to enforce its laws outside the country.” [106] So long as they stay abroad, it is the laws of their place of residence that apply to Canadian expatriates, and it is to their countries of residence that they pay taxes.

While depriving a Canadian citizen of the right to vote is a “straightforward” [81] breach of section 3 of the Charter, Justice Strathy finds the breach justified with respect to non-resident citizens because, not being subject to all the “responsibilities and burdens” of citizenship, they have withdrawn from the “social contract,” which would be undermined by allowing them to exercise the right to vote. The “social contract” involves a “reciprocity between civic rights and responsibilities” and, more specifically, “a mutuality between the franchise and the citizen’s obligation to obey the law – between political rights and political obligations.” [94] In support of this notion of “social contract,” the Chief Justice invoked a passage from the majority opinion in Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68, at par. 31, which alluded to the

vital symbolic, theoretical and practical connection between having a voice in making the law and being obliged to obey it. This connection, inherited from social contract theory and enshrined in the Charter, stands at the heart of our system of constitutional democracy.

As Chief Justice Strathy notes, “[i]t remains necessary to ask whether Parliament’s intention,” in limiting the ability of Canadians resident abroad to vote, “was to protect the social contract.” [100] While this limitation was mainly justified, the Chief Justice says, by “concerns … primarily directed at the subjective connections of non-residents based on their knowledge and ties to Canada,” the relationship between residence and the duty to obey the law “is an equally important part of this connection and was implicit in the rationale underlying the law.” [103] According to the Chief Justice, this rationale is of sufficient importance to justify depriving Canadians abroad of their voting rights.

The Chief Justice also finds that the restriction imposed by Parliament is proportional to its purpose. It is rational, because “the legislative objective is to maintain the connection between the voters, the lawmakers and the laws,” and “the longer-term non-resident has voluntarily withdrawn from the social contract and has submitted him/herself to another political and legal order.” [131] This is in contrast, says Justice Strathy, to “military personnel, public servants posted abroad and employees of international organizations,” who are exempt from the five-year limitation on their voting rights, because “these citizens have not voluntarily severed their connections with Canada in the pursuit of their own livelihoods – they have done so in the service of their country.” [143] For the others, the five year limit is minimally impairing ― that is to say, it “is a reasonable cut-off.” [144] Although the number, like any number, is to some extent arbitrary, it corresponds to “the maximum life of a Parliament” [151] and “is generally enough time to complete a university degree, a common reason for Canadian citizens to spend time abroad.” [152] It is a reasonable proxy for the distinction between temporary and long-term absences from the country, in addition to being in line with the rules established elsewhere in the Commonwealth (specifically, in Australia and New Zealand). Finally, Justice Strathy concludes that “the solidification of the bond between the electorate and the elected” [156] that results from limiting expatriates’ voting rights outweighs the deprivation, which in any case is temporary, since the citizen recovers his or her right to vote upon resuming residence in Canada.

* * *

Justice Laskin dissents. He observes that this “case raises the constitutionality of the last significant piece of federal legislation denying the right to vote to a group of Canadian citizens.” [161] For him, the denial is unjustified. His first argument, which I will skip here (although I find it compelling) is that the Court should not even have entertained submissions regarding the social contract, which were not made at first instance and for which there was no evidentiary basis. Second, Justice Laskin contends that, contrary to what the Chief Justice found, Parliament’s decision to impose a five-year limit on the expatriates’ voting right did not aim at preserving the “social contract.” Accepting a restriction of Charter rights on this basis is a violation of the rule that a statute’s purpose cannot “shift” between its enactment and the consideration of its constitutionality by a court.

Justice Laskin points out that “not a single parliamentarian, not a single study, recommended a five-year non-residency limitation in order to preserve or strengthen our social contract.” [199] Indeed, the relationship between residence, the duty to obey the law, and the right to vote “is an artifice, conjured up by the Attorney General to avoid running up against the shifting purpose doctrine.” [202] The alleged legislative purpose, Justice Laskin says, was “invented by the government long after 1993; indeed, it appears to have been invented after this case was decided” at first instance. [204]

In any case, even if that objective could justify a restriction of the expatriates’ right to vote, it fails to do so. No fewer than four Parliamentary reports recommending allowing all Canadians abroad to vote, which suggests that the objective is not pressing and substantial. Besides, it is not true that residence in Canada is necessary for participating in the Canadian social contract. The world in which residence was the key to participating in a political community (and in which “only male property owners could vote” [221]) no longer exists. The Charter provides a single criterion for membership in “the community of eligible voters,” “much more suited to the world we now live in,” [221] ― citizenship.

To be sure, “more laws, even many more laws, affect residents than non-residents. But even among residents, legislation does not affect all citizens equally.” [223] It is not the case “that the number of laws a Canadian citizen is subjected to can be tied to the preservation of the social contract.” [223] Justice Laskin also points out, as did the judge at first instance, that the decisions of the Canadian government do, in fact, affect expatriates, and will do so in the future, including after their return to Canada.

Justice Laskin criticizes the majority for the way it used the Supreme Court’s decision in Sauvé, which expanded voting rights, to justify their restriction. For him, “the majority reasons in Sauvé [are] an uncompromising defence of the right of every Canadian citizen to vote, even those convicted of the most heinous crimes.” [229] Sauvé also cautioned against accepting purely symbolic governmental objectives, and specifically rejected the argument “that prisoners were not entitled to vote because they have opted out of membership in the community.” [234]

Justice Laskin also argues that even if the objective of preserving the social contract were pressing and substantial, the five-year restriction would not be proportional to it. The limit, and the exemption for civil servants, members of the military, and their family, “ha[ve] everything to do [with] worthiness” [244] ― the putative worthiness, that is, of the different categories of Canadians who reside abroad. It is not a rational way to preserve the “social contract,” because many expatriates, whatever the reasons for which they live outside Canada, “have not renounced membership in the Canadian polity.” [245] Furthermore, because the exemptions are not tailored to the law’s objective in any meaningful, evidence-based way, the five-year limit is not minimally impairing of the right to vote. Finally, the limit’s positive effects, if any, are outweighed by the harm of the deprivation of the right to vote: laws made today affect how our country will be governed, not just in the immediate future, but for years to come. Justice Laskin points out that

laws made today affect how our country will be governed, not just in the immediate future, but for years to come. Yet Canadian citizens abroad for more than five years … will have no voice in the future direction of their country even though they have family here, intend to return here, and thus will be affected by laws enacted while they are abroad. [252]

* * *

In a majority opinion that does not deign so much as to mention the dissent, the Court of Appeal answers the question of whether Canadians can have a voice in the government of their country after they exit it by a resounding “shut up!” As I indicated above, I think that the majority is absolutely wrong to do so. Justice Laskin’s dissent is correct (except, that is, for his description of J.S. Mill, born in 1806, as an “18th century political philosopher” [203 & 235]). In a separate post to follow shortly, I will make a few additional points that do not so much add to his reasons as sharpen some of his arguments.

UPDATE: The additional points are here.

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.

Vote On

The CBC reports that Justice Robert Sharpe of the Ontario Court of Appeal denied the federal government’s application for a stay of the Superior Court’s decision in Frank v. Canada (Attorney-General), 2014 ONSC 907, invalidating the restrictions on expatriate voting in the Canada Elections Act, which the government is appealing. I blogged about the Superior Court’s decision here, and about the stay application here.

The text of Justice Sharpe’s decision is not yet available, but from the excerpts quoted by the CBC, it seems that it focused on the “irreparable harm” part of the test for a stay pending appeal. The government argued that it would suffer such harm if the stay were not granted, because the votes of the expatriates enfranchised by Frank ― those, that is, who have been resident outside Canada for more than five years ― might tilt the outcomes of the upcoming by-elections in Ontario and Alberta. This possibility, according to Justice Sharpe (as quoted by the CBC), is “fairly remote.” By contrast, if people are unconstitutionally disenfranchised, their opportunity to vote in the upcoming elections is lost forever. Thus the balance of convenience stage of the test does not favour the government either.

This decision is what I expected. Justice Sharpe seems to have suggested that the government has “an arguable appeal.” I still doubt  that this is so, as I explained in my previous posts. In any case, “arguable” does not mean “likely to succeed.” I still believe that the government’s appeal, much like the stay application, is a waste of court time and taxpayer money.

UPDATE: The stay decision, Frank v. Canada (Attorney General), 2014 ONCA 485, is now available here. If anything, the government’s case is in a worse shape than the CBC report seemed to suggest. Justice Sharpe describes the judgment below as “carefully considered” (par. 8), and is skeptical of the government’s position on the merits of the appeal. On the question of whether there is a serious issue to be decided in the appeal, he writes:

I share the application judge’s concern that the objectives identified by the Attorney General as being sufficient to justify limiting the right to vote are broad, symbolic and rhetorical. In oral argument, counsel insisted that Parliament’s central concern was election fairness. It is not clear to me how denying a citizen the right to vote can be justified on the basis of electoral fairness. The objectives identified by the Attorney General obscure what appears to me to be the real issue, namely, whether the five year limit on non-resident voting can be justified on the basis that it is necessary to sustain our geographically determined, constituency-based system of representation. As the Supreme Court of Canada observed in Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, the prisoner voting case, “[v]ague and symbolic objectives” render proportionality analysis hollow.  However, I do not say that the Attorney General has failed to show that the appeal is arguable. (Par 13)

Justice Sharpe is also not amused by the government’s assertion of “something approaching an automatic right to a stay” (par. 14). There is no such thing. Justice Sharpe points out that unlike in cases where the validity of a complex regulatory scheme is in question, allowing Canadians abroad to vote will cause no real disruption to the electoral process. (Indeed, Elections Canada has already implemented the necessary changes.) This too seems to bode ill for the government’s argument on the merits of the appeal, since it will have a hard time showing that the prohibition on expatriate voting has any serious salutary effects.

ADDITIONAL UPDATE: In the Toronto Star, Tim Harper has an excellent column on Canadians abroad and their fight to vote. He concludes:

The Conservative view of Canadians who have left the country remains hard to fathom. If you are a dual citizen journalist in Egypt wrongly sentenced to seven years in prison your government is largely silent. If you are a Liberal leader who spent time abroad, you are attacked for leaving. If you are a Canadian citizen abroad wishing to vote, you must first fight your government.

For my part, I will add this. I lived in the United States for almost four years; I started this blog, dealing largely with Canadian constitutional law, while I was there. On the evidence of this record of my thinking, I challenge anyone, including Justice Minister Peter MacKay and Democratic Reform Minister Pierre Poilievre, to show what has changed, in my knowledge of and attachment to Canada, since I have returned last month. Or what will change if I have to leave again, for work, in the future.

Foolish Hope

When I blogged last month about Frank v. Canada (Attorney-General), 2014 ONSC 907, the decision of Ontario’s Superior Court of Justice striking down the provisions of the Canada Elections Act disenfranchising Canadians who reside abroad for more than five years, I expressed the hope that “the government [would] save[] taxpayers money by not appealing.” Justice Penny’s ruling, as I said then, “is legally correct and morally right ― quite obviously so.” But, as it turns out, the government is undeterred. According to a Canadian Press report published by La Presse, it will not only appeal, but also ask for the decision to be stayed pending the appeal’s resolution. If the stay is granted, Canadians abroad who might have voted in the upcoming by-elections will be disenfranchised.

I expect that not only the appeal, but also the stay application will fail. I look forward to reading the federal government’s notice of appeal and, eventually, its factum, if the respondents’ lawyers post them on the website where they have documented the case; but I really cannot imagine that they will offer much more than a rehash of the vague platitudes rejected by the trial judge. Nor can I see how the government intends to meet the criteria for succeeding on its stay application: the existence of a serious question in dispute, the possibility that it will suffer irreparable harm if the stay is not granted, and the balance of convenience.

The judge who considers the stay application will probably let the government off the hook on the first part of the test (though I, for one, am not even persuaded that the constitutionality of disenfranchising Canadians abroad is a “serious issue” in light of Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, where the Supreme Court rejected arguments in favour of disenfranchisement of prisoners very similar to those advanced by the federal government in Frank). But I cannot, for the life of me, see what “irreparable harm” the stay would prevent. As Justice Penny found at first instance, “the government has failed to identify any particular problem with non-resident voter fraud or … undue drain on Parliamentary resources” (par. 114) that might have justified the disenfranchisement of expatriates, so it is difficult to understand what harm could come out of a few of them voting in some by-elections while the (likely futile) appeal is being heard. Similarly, I doubt that the government can show that it will suffer much of an inconvenience that could help it prevail on the third part of the test. In any case, the absence of irreparable harm means that it cannot and ought not to succeed.

The stay application and the appeal itself are a waste of court time and taxpayers’ money. I suppose it was, after all, foolish to hope that the government would realize that, despite Justice Penny’s clear and solid ruling at first instance. Perhaps the Court of Appeal can deliver an even clearer one so that the government will at least spare us the expense of taking this case to the Supreme Court. Foolish though it is, one can still hope, right?

Voice After Exit!

In a decision released last week, Frank v. Canada (Attorney-General), 2014 ONSC 907, Ontario’s Superior Court of Justice held that the disenfranchisement of Canadian citizens who have been resident abroad for more than five years is unconstitutional. The provisions of the Canada Elections Act at issue in Frank limited the right to vote from abroad to those Canadians who had been resident outside Canada for less than five years and intended to return ― although members of the Canadian Forces, civil servants, and Canadians employed by some international organizations, as well the members of these people’s families, were exempt from the five-year limit. Two Canadians living in the United States, who had, as as result, been unable to vote in the last federal election, challenged the five-year limit and the requirement of an intention to return. In a thorough and meticulous decision, Justice Penny agrees with them, finding that depriving Canadian expatriates of their right to vote is a violation of s. 3 of the Charter, and cannot be justified under s. 1.

From the evidence, Justice Penny concludes that “well over a million Canadians” (par. 20) are disenfranchised by the five-year rule. Yet many of them, just like the applicants themselves, maintain connections to Canada. They visit it; they stay informed about Canadian news; they have friends and family in Canada; many still pay some taxes in Canada; and large majorities considered Canada their home and intended to return there. Justice Penny also finds, following a detailed review of the history of vote-from-abroad provisions in Canadian electoral legislation, that the five-year is, in effect, a mushy compromise between those who worried about the unconstitutionality of disenfranchising Canadians abroad and those more concerned about the extent of the expatriates’ connections to Canada. There was little debate about it in Parliament, and little explanation for the number chosen.

Remarkably ― and contrary to what I expected when I blogged about this case when it was launched ― the government argued that the disenfranchisement of Canadians citizens living abroad was not an infringement of the s. 3 right. In its view, residence was an internal limitation on that right, rather than a qualification that had to be justified under s. 1. Justice Penny rejects this argument, noting that “s. 3 clearly contains no limits on the right to vote other than citizenship.” Although residence is an important parameter in our current electoral system, that system itself is not constitutionally entrenched. Indeed,

The framers of the Charter, and those who adopted it, stipulated citizenship as a requirement to vote but did not include residence, in spite of the long history of residence as an element of the Canadian electoral process (par. 84).

The same is true of the government’s argument that the right to vote was inherently limited to those who had a stake in Canada’s laws and future: the Charter itself defines citizenship alone as conclusive proof of a person having such a stake. Any countervailing considerations supporting limits on the franchise must to be considered under s. 1.

The first step of the s. 1 analysis is a consideration of the five-year rule’s objective. The two main purposes asserted by the government were avoiding unfairness to Canadian residents that would result from people not connected to and not informed about Canada voting, and preserving the integrity of the electoral system from fraud and excessive demands on members of Parliament. Justice Penny is not impressed: the objectives are “rhetorical” (par. 112); “substantive ‘fairness’ is almost always in the eye of the beholder” (par. 113); and “the government has failed to identify any particular problem with non-resident voter fraud or … undue drain on Parliamentary resources” (par. 114). Justice Penny comes close to finding that the government’s objectives are not “pressing and substantial”, as required to justify the infringement of a Charter right but, without actually ruling on this point, chooses to proceed to the rest of the s. 1 analysis.

Not that things get better for the government there. At the outset of the inquiry into the connection between the government’s objectives and the five-year rule, Justice Penny finds that

the government argues that the non-resident is insufficiently connected to Canada and that the voting rights of resident Canadians can only be protected against de-valuation by taking away the vote from those who are unworthy ― those who have lost their connection to Canada by being non-resident for five years or more (par. 123).

Yet the Supreme Court rejected a very similar argument, with respect to prisoners’ voting rights, in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519. Whatever “vague concerns” Parliament might have had about expatriates voting, “[i]n 2013, it is not only possible but easy for interested Canadians to keep abreast of Canadian politics and current events” (par. 125). In Justice Penny’s view, the disenfranchisement of Canadians abroad, however long they have lived outside Canada, does nothing at all to prevent the unfairness and abuse the government is purportedly concerned about.

The five-year rule is also overbroad, and thus not a minimal impairment of the right to vote, since it disenfranchises people whose knowledge of Canadian politics may be exemplary (even as other Canadians, “many of whom may be totally uninformed and disinterested” (par. 136), are allowed to vote. And even if being a citizen were not a sufficient connection to Canada to vote, “the very act of being interested in and taking the steps to vote is evidence of the voter’s connection to Canada” (par. 142).

Finally, Justice Penny finds that

 the vague assertions of unfairness to resident voters and the speculative nature of any negative impacts cannot outweigh the substantial, deleterious impact of stripping a Canadian citizen of his or her right to vote by virtue only of crossing the five-year non-resident threshold (par. 150).

The government’s lack of evidence to support its case dooms it. The five-year rule is unconstitutional, and there is no point, according to Justice Penny, in suspending the declaration of unconstitutionality.

This is the right decision, and indeed there is little to criticize in Justice Penny’s reasons. As Justice Penny finds, and as I wrote in my first post on this case, the disenfranchisement of Canadians abroad is arbitrary. It is nothing more than a judgment that they are not morally worthy to vote ― and such judgments are not open to Parliament, according to Sauvé. I hope the government saves taxpayers money by not appealing this decision. It is legally correct and morally right ― quite obviously so.