Should Canadian Citizens Abroad have an Unfettered Right to Vote?

Martin Kwan - 15th March 2019

Canadian citizens who have resided abroad for five years or more did not have the right to vote in a federal election unless and until they resumed residence in Canada. The constitutionality of this limit on the right to vote was recently challenged in the Supreme Court of Canada’s decision of Frank v. Canada (Attorney General) 2019 SCC 1. In a landmark finding, the majority held that the limit on the right to vote was not a reasonable limit under s.1 Canadian Charter, and therefore it was unconstitutional.

The two claimants in the case were Canadian citizens who were born in Canada, but currently live in the US. They brought the present challenge after they were denied the right to vote in the 2011 Canadian federal election for having resided outside Canada for more than five years. The court had to consider if the limitation on the right to vote was reasonable under s 1 of the Canadian Charter which entailed a two-stage inquiry. First, the court had to determine if the limitation served a sufficiently important objective. Second, it had to determine if the limitation of the right was proportionate to the stated objective.

The majority held that the objective of the limitation on the right to vote was to ensure electoral fairness to resident voters by ensuring that non-resident voters were sufficiently connected to Canada. From this perspective, the limit would only be justified if voting by non-residents would cause harm to electoral fairness.

The majority held that the limit was unjustified for two reasons, the second more convincing than the first. First, the majority found no evidence of harm that might compromise the fairness of the electoral system in allowing non-residents to vote. This first argument is not entirely persuasive, especially seen in light of Rowe J’s view, which noted the ‘common sense’ unfairness of a non-resident supporting significant tax increases by which they will never be burdened. Second, and more convincing, was the majority’s finding that the exclusion of all voters based on the length of their non-residence was over-inclusive, as it excluded persons who may have continuing connections to Canada. Many non‑resident citizens maintain deep and abiding connections to Canada through family, online media and visits home, and by contributing taxes and collecting social benefits. Furthermore, Canadian law and policy can have application to non-residents.

Nevertheless, it could be argued that it is unfair to allow those with little (or no) connection (e.g. those with no intention to return) to vote and that this is a matter not suited for the court to decide as it is a political question requiring deference to the executive and legislative branches of government. However, the court’s constitutional role is to safeguard the fundamental legal right to vote. The majority was thus correct to take a non-deferential approach especially when the government had failed to present adequate evidence of unfairness to resident voters.

Similar limits exist in other jurisdictions and challenges have similarly been made against them as in, for example, Doyle v UK, the Shindler case, and Hilbe v Liechtenstein  In all these cases, similar limits were held to be permissible limitations on the right to vote. In distinguishing its judgment, the majority in this case held that the ‘mere fact that a measure is in effect in other countries’ is irrelevant, because ‘Canada is an international leader’ of progressive enfranchisement.  The approach taken by Strasbourg has been described as deferential and timid in evaluating the limitations of the right to vote, affording insufficient protection to the vital right to vote. Thus, the approach taken in this case is a laudable approach to protecting the right to vote in liberal democracies. The majority judgment is legally sound in accordance with the Canadian vision of democracy as embodied in the Charter. It affirmed that the right to vote should not unreasonably limited after reviewing the government’s proffered justifications carefully and rigorously rather than adopting a deferential attitude. Parliament should not indiscriminatorily deprive the democratic right to vote of all non-residents.

Author profile

Martin Kwan is a legal researcher currently focusing on public, human rights and electoral laws.

Citations

Martin Kwan, “Should Canadian Citizens Abroad have an Unfettered Right to Vote?” (OxHRH Blog, 15 March 2019), <http://ohrh.law.ox.ac.uk/should-canadian-citizens-abroad-have-an-unfettered-right-to-vote> [date of access].

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