Supreme Court of Canada rules voting ban on Canadians residing abroad 5 years or more is unconstitutional.
Friday, January 11, 2019 - Filed in: Courts
"The combined effect of ss. 11 (d), 222 and other related provisions of the Canada Elections Act is to deny Canadian citizens who have resided abroad for five years or more the right to vote in a federal election unless and until they resume residence in Canada. The constitutionality of these provisions was challenged by two non‑resident Canadian citizens, who applied for a declaration that their right to vote entrenched in s. 3 of the Charter was infringed, and that the impugned provisions were unconstitutional. The application judge agreed, found that the impugned provisions could not be saved under s. 1 of the Charter , and made an immediate declaration of invalidity. A majority of the Court of Appeal allowed the Attorney General of Canada’s appeal. Although the Attorney General of Canada conceded that the impugned provisions breach s. 3 of the Charter , the violation of s. 3 was found to be justified."
The S.C.C. held (3 judges concurring with the Chief Justice, 1 judge writing separate concurring reasons, and 2 judges writing joint dissenting reasons) that the appeal is allowed; sections 222(1) (b) and (c), 223(1) (f) and 226 (f) of the Canada Elections Act are declared to be of no force or effect; the words “a person who has been absent from Canada for less than five consecutive years and who intends to return to Canada as a resident” are struck from s. 11(d) of the Act and are replaced with the words “an elector who resides outside Canada”; and the word “temporarily” is struck from ss. 220, 222(1) and 223(1)(e) of the Act.
The S.C.C. held (3 judges concurring with the Chief Justice, 1 judge writing separate concurring reasons, and 2 judges writing joint dissenting reasons) that the appeal is allowed; sections 222(1) (b) and (c), 223(1) (f) and 226 (f) of the Canada Elections Act are declared to be of no force or effect; the words “a person who has been absent from Canada for less than five consecutive years and who intends to return to Canada as a resident” are struck from s. 11(d) of the Act and are replaced with the words “an elector who resides outside Canada”; and the word “temporarily” is struck from ss. 220, 222(1) and 223(1)(e) of the Act.
Chief Justice Wagner wrote as follows (at paras. 4-5, 35, 74):
"The respondent, the Attorney General of Canada (“AGC”), concedes that the limit on the voting rights of non-residents breaches s. 3 of the Charter . It follows that the central question in this appeal is whether this is a reasonable limit that can be demonstrably justified under s. 1. I conclude that it cannot. The vague and unsubstantiated electoral fairness objective that is purportedly served by denying voting rights to non-resident citizens simply because they have crossed an arbitrary five-year threshold does not withstand scrutiny.
In particular, the AGC has failed to show that limiting the voting rights of non-resident citizens is minimally impairing. There is little to justify the choice of five years as a threshold or to show how it is tailored to respond to a specific problem. It is also clear that the measure improperly applies to many individuals with deep and abiding connections to Canada and to Canadian laws, and that it does so in a manner that is far broader than necessary to achieve the electoral fairness objective advanced by the AGC. The disenfranchisement of these citizens not only denies them a fundamental democratic right, but also comes at the expense of their sense of self-worth and their dignity. These deleterious effects far outweigh any speculative benefits that the measure might bring about.
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In sum, the world has changed. Canadians are both able and encouraged to live abroad, but they maintain close connections with Canada in doing so. The right to vote is no longer tied to the ownership of property and bestowed only on select members of society. And citizenship, not residence, defines our political community and underpins the right to vote.
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In short, the five-year limit cannot be said to be minimally impairing, given that it impairs the rights of many non-resident citizens who maintain deep connections to Canada and many on whom Canadian laws continue to have a significant impact. From this perspective, the limit will in many cases undermine, rather than promote, the underlying objective of electoral fairness advanced by the AGC. It is also argued that the five-year limit is minimally impairing on the basis that it falls within the range of external voting limits drawn in countries such as Australia and New Zealand. For the reasons set out above, I place little stock in comparisons with other countries for the purpose of determining whether this legislation is constitutional. I would simply note that such comparisons are unhelpful in any event. For example, the limit the United Kingdom places on the voting rights of its non-resident citizens takes effect when they have been out of the country for 15 years. Further, the limits on voting by non-residents of six years in Australia and three years in New Zealand are actually far less stringent than the five-year limit at issue in this case: in Australia, the voter’s right can be extended indefinitely upon application, while New Zealand’s three-year limit is reset each time the non-resident returns to the country."
Justices Côté and Brown (in dissent) wrote as follows (at paras. 112-114):
"The Attorney General of Canada concedes that the restriction on long-term non-resident voting constitutes a limit on the appellants’ s. 3 right, but says that this limit is constitutional. Subject to what we say at para. 123, we agree. The objective of the 1993 amendments was to expand the franchise to non-resident citizens temporarily living outside of Canada, while preserving a relationship of currency between electors and their communities in Canada. This objective is pressing and substantial, and the means that Parliament chose to achieve it — a voting regime akin to those in place in comparable Westminster democracies, whose parliaments, like Canada’s, are constituted of elected community representatives — are demonstrably justifiable in a free and democratic society.
While we therefore reach a different result than the Chief Justice, we see our fundamental point of disagreement as lying in the proper judicial approach to the limitations analysis. We start from the premise that s. 3 is a positive right which, unlike most Charter rights, requires legislative specification in order for the right to be operative. It follows that Parliament acted to define and shape the boundaries and contours of a positive entitlement which, as such, necessarily requires legislative specification.
Moreover, and contrary to the seemingly absolute quality of the majority’s understanding of s. 3 ’s guarantee, such legislative specification is not only necessary, but uncontroversial. Nobody suggests that s. 3 entitles three-year-old Canadian citizens to vote. Similarly, the Canada Elections Act, S.C. 2000, c. 9 , withholds the vote from Canadian citizens who have never lived in Canada. And yet, and as the appellants concede, their logic — and, we add, the logic of the majority reasons in this appeal — would necessarily invalidate that restriction as well, opening the vote to persons who have never before so much as set foot in Canada. Far from an example of “progressive enfranchisement” (majority reasons, at paras. 2 and 62), we see this development as regressive, undermining the longstanding and entirely salutary practice in Westminster parliamentary democracies of privileging local connections in deciding who may elect local representatives. In any event, “progressive” or not, the impugned limit on the right to vote is reasonable. ..."
Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.