The Power of Perspectives

The Canadian Bar Association

Kim Covert

Waiving the social contract: expatriates and the vote

July 21 2015 21 July 2015

The Ontario Court of Appeal ruled on Monday in Frank v. Canada that Canadian expatriates who have lived more than five years abroad do not have the right to vote in Canadian elections.

Justice George Strathy wrote in the majority decision:

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. The legislation is aimed at strengthening Canada’s system of government and is demonstrably justified in a free and democratic society. While the impugned legislation violates s. 3 of the Charter, it is saved by s. 1. Denying the right to vote to non-resident citizens whose absence exceeds five years is a reasonable limit on the Charter right.

According to the ruling, more than one million Canadians who have lived outside the country for more than five years have no right to vote due to the provisions of the Canada Elections Act unless they fall in an excluded category – those serving in the military, for example, or others who are “reasonably presumed to be returning to Canada.”

Gillian Frank and Jamie Duong, who brought the Charter challenge after discovering they couldn’t vote in the 2011 election, have been living in the U.S. but both have said they would return if they could find suitable employment here.

In throwing out the voting ban last year, Superior Court Justice Michael Penny ruled that voting is a “clearly articulated constitutional right” for which citizenship was the only requirement.

Strathy in his decision writes:

The appellant’s primary position, and the one I will focus on, is that the residency requirement fulfills the pressing and substantial objective of preserving the social contract at the heart of Canada’s system of constitutional democracy. It ensures citizens are both subjectively connected to Canada through their knowledge and affiliation and objectively connected through holding citizenship responsibilities and duties to obey domestic laws. The connection between having a voice in making the laws and being obliged to obey them is what gives the laws legitimacy.

Moreover, the impugned measures do not permanently strip non-residents of the right to vote. They only limit the right as long as those non-residents choose to live outside Canada. Residence, like age, is a way of regulating the modality of voting and does not speak to “worthiness.” The five-year rule is therefore entitled to deference. Five years corresponds to the maximum life of Parliament and is a reasonable and minimally impairing temporal line for regulating the right to vote. 

 

In the dissenting opinion, Justice John Laskin noted that the “social contract” argument was not substantially made at trial.

(T)o meet its burden under s. 1, the Attorney General must rely on an objective that reflects Parliament’s intent at the time the challenged provisions were enacted – in this case, 1993, when the Canada Elections Act was amended to extend the vote to non-resident citizens who had been absent from Canada for less than five years. But the objective the Attorney General and my colleagues now rely on does not do so. The record before this court contains no evidence to show that when Parliament enacted the five-year non-residency limitation in 1993, its intent was to preserve or strengthen the social contract. To now rely on this objective runs afoul of the well-recognized shifting purpose doctrine of Canadian constitutional interpretation.

The government has argued that limiting the expatriate vote to absences of fewer than five years is within international norms. Here are the rules in the other G-7 countries:

U.S. – Americans abroad retain voting rights.

U.K. – There is a 15-year rule, which the Conservatives in the recent election campaign vowed to abolish.

France – France not only allows expatriates to vote in presidential elections, in 2012 it created a legislative seat for them – a parliamentarian to represent expatriates’ interests.

Germany – A 2013 Constitutional Court decision said that even German citizens who have never lived in the country may vote in its legislative elections.

Italy – Allows expatriate citizens to vote in federal elections.

Japan – Citizens living abroad may vote at their embassies and consulates in federal elections.

In fact, according to a factsheet on immigrant voting prepared by globalirish.ie, in 2006, 21 African countries, 13 North and South American countries, 15 Asian countries, 6 Pacific countries and 36 European countries allow their expatriate citizens to vote in federal elections – 65 of these countries allow it without restrictions, and 25 with.

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