SCC to hear case on expat voting rights

By Justin Ling March 20, 201820 March 2018

SCC to hear case on expat voting rights


At a time when foreign influence in domestic elections is at an all time high, the Supreme Court will finally hear arguments tomorrow in favour of why outside agitators should be allowed to participate in Canadian elections. In so doing, the top court is set to tackle the definition of what, exactly, is in the Canadian social contract.

It’s not exactly Russian propaganda, however.

In 2015, the Ontario Court of Appeal ruled that section 11(d) of the Elections Canada Act, which bars Canadian expats who have been out of the country for more than five years from voting, was constitutional. In so doing it overturned a lower court ruling which struck down the section.

The legislation effectively disenfranchises more than a million Canadians living abroad, although Ottawa has held that such a prohibition is within international norms (as CBA National has written previously, that is not even remotely true in the G7 context, where most countries allow full franchise for non-resident citizens.)

Two Canadians living in the United States, who launched the lawsuit, contend otherwise. Pointedly, they write in their factum to the top court that “the disenfranchisement of Canadian citizens in this case cannot be saved by s. 1 of the Charter.”

On appeal, the case took an interesting twist, turning largely on whether or not expat Canadians were truly members of the “social contract.”

“Permitting all non-resident citizens to vote would allow them to participate in making laws that affect Canadian residents on a daily basis, but have little to no practical consequence for their own daily lives. This would erode the social contract and undermine the legitimacy of the laws,” wrote the majority court.

And yet, as Justice John Laskin wrote in a dissenting opinion, that social contract was never really litigated at trial, but cropped up for the first time on appeal. “For my colleagues and the Attorney General, residence in Canada appears to be a proxy for participation in the social contract, and thus is the philosophical foundation of the right to vote,” Laskin wrote.

It’s no surprise that, while the social contract may not have been a big part of the original litigation, it’s now the core of arguments that will be heard by the top court later this week. And could sketch out an interesting framework for just what, exactly, Canada’s social contract is supposed to look like.

The applicants pointedly wrote in their written arguments that “the majority's particular articulation of the social contract, imported from 18th Century political theorists, could be used to mean almost anything. As a result, it ultimately insulates the rights restriction from scrutiny.”

The Attorney General, for its part, argues there’s nothing particularly novel about the concept, writing “The expression ‘social contract’ is a convenient shorthand to capture the argument that long-term non-resident voting engages questions about the mutuality and reciprocity of rights and responsibilities.” The AG points to a Sauvé v. Canada, which expanded the franchise to incarcerated Canadians.

The majority court in that decision wrote that: “As a practical matter, we require all within our country’s boundaries to obey its laws, whether or not they vote. But this does not negate 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.”

That, the Attorney General argues, is an “explanation of the important reciprocity between the voting right and the consequent legal responsibility that follows.”

The appellants say that is a wild misrepresentation of how the Supreme Court envisioned their concept of the social contract. Indeed, the majority court in that case, from 2002, used the philosophical concept to extend the franchise, not to maintain its restrictions.

The B.C. Civil Liberties Association, who will be intervening during the oral arguments on Wednesday, rejected that argument succinctly: “The suggestion that the state can remove the right to vote from a citizen for insufficient participation in the social contract is anathema to the inclusive view of Canadian democracy endorsed by this Court in Sauvé #2.”

All of this was supposed to be a moot point, at least for the two applicants. The Trudeau government promised to drop the Elections Act prohibition when they came into government, introducing Bill C-33 to do just that. That bill, however, received first reading in November, 2016, and hasn’t been touched since.

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