The expat vote: What we’re getting wrong, and why it still matters
The Ontario Court of Appeal didn’t take away the right to vote from Canadians living abroad last week — it was already missing. The Supreme Court or Parliament should now step in
Léonid Sirota is doctoral student at the NYU School of Law. He is a graduate of the McGill University Faculty of Law and has a master's degree from NYU. He is the creator of the legal blog Double Aspect, named best Canadian law bog at the 2014 Canadian Law Blog Awards.
Several high-profile Canadians living abroad, from Globe and Mail’s London-based correspondent Mark McKinnon to U.S.-based actor Donald Sutherland, have come out over the past week to criticize a recent decision of the Ontario Court of Appeal, saying they have just “lost the right to vote.” But the decision only restored a state of affairs that had prevailed for over 20 years, until it was briefly upended by a trial court’s ruling which the Court of Appeal reversed.
The outcome was not new, although the arguments that the Court invoked to support it were. But that does not make it right. Contrary to what the Court of Appeal and those who defend its decision say, Canadians who live abroad retain a stake in how Canada is governed ― and by whom. Just as importantly, treating them as second-class citizens is unfair, and has no basis in the constitution.
While this may surprise some Canadians, it was only in 1993 that Canadian citizens who live outside Canada were granted the right to vote ― and then only for five years of their absence from the country. Following this period, a Canadian citizen still loses his or her right to vote, ostensibly protected by the Canadian Charter of Rights and Freedoms. Two Canadians who live in the United States have challenged the constitutionality of their disenfranchisement, arguing that it is not justified, as infringements of Charter rights must be, in a free and democratic society.
In a decision delivered last week, the Court of Appeal for Ontario rejected their arguments.
The Court’s majority held that Parliament is entitled to prevent Canadian expatriates from voting because they have voluntarily removed themselves from a “social contract” pursuant to which Canadian citizens possess the right to vote and must obey the laws enacted by the representatives they elect.
Writing for the majority, Chief Justice George Strathy reasoned that Canadians abroad typically do not have to obey Canadian laws, and thus can be denied a voice in their enactment.
By contrast, for Justice John Laskin, who dissented, the notion of a “social contract” could not justify withholding the right to vote from citizens who are still affected by decisions of the Canadian government, and who have a stake in the future of a country to which they are entitled and intend to return.
In my view, Justice Laskin has the better of the argument. As he points out, Canadians have a stake in how their country is governed even if they find themselves living abroad for an extended period of time.
For one thing, Parliament’s choice not to legislate extra-territorially, which as a matter of law is freely reversible at any time, should influence the scope of constitutional rights. For another, even if they need not — for the time being — comply with Canadian legislation, Canadians who live abroad are affected by the decisions of the Canadian government, especially in the realm of foreign policy. If nothing else, it matters how those with whom you live and work think of Canada and Canadians, whether or not such judgments are fair.
Some say that expatriates are likely to disproportionately base their votes on matters of foreign policy, and perhaps on the single issue of Canada’s relationship with the country where they live. It is by no means clear that this is indeed so. However, even if it is, we should recall that there are quite a few single-issue voters among Canadian residents too. The vote of an expatriate only concerned about foreign policy is no better and no worse than that of a farmer only concerned with the future of supply management, or for that matter that of a civil libertarian only concerned about an anti-terrorism statute.
The lesson here is that it is wrong to judge Canadians abroad more strictly than those who remain at home. We do not ask those who show up at polling stations across Canada whether they have considered the full spectrum of policy issues before handing them their ballots. There is no basis for doing this with expatriates either, much for disenfranchising them on the basis of a presumed answer to this question. Similarly, we do not ask whether resident voters have dedicated their lives to the service of Canada; yet the electoral law, which exempts soldiers and civil servants ― as well as their families ― from the five-year rule applicable to other Canadians abroad does just that.
There is only one Canadian citizenship, and there ought to be only one sort of Canadian citizen. The Charter grants the right to vote to Canadian citizens, and makes no provision for excluding expatriates.
Besides, we should keep a sense of perspective about the stakes in this debate. Voting from abroad is very difficult, even for those who have the right to do so. (It will become well-nigh impossible if Bill C-50, proposed by the Harper government, becomes law, but that is a somewhat different issue from the disenfranchisement of long-term expatriates.) Only about 6,000 Canadians exercised their franchise from abroad in the last election, and there is no chance that large numbers of expatriate voters will swing Canadian elections.
However, for those Canadians abroad who feel strongly enough about participating in their country’s democratic process, disenfranchisement is tantamount to a denial of their belonging to a community of which they are still members, as a matter both of law and of their own perception. It is an injustice, all the more serious since it serves no concrete purpose.
It is time for either the Supreme Court or Parliament itself to put an end to it.