Supreme Court rules voting restrictions on expatriate citizens are unconstitutional

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TheGlobeandMail.com – Canada
January 11, 2019.   JUSTICE REPORTER

The Supreme Court of Canada has ruled voting restrictions on expatriate citizens are unconstitutional.

Two Canadians working in the United States, Gillian Frank and Jamie Duong, challenged federal voting restrictions after being unable to vote in the federal election of 2011. At the time, the law said non-resident citizens could not vote if they had lived more than five years abroad.

In December, a Liberal bill extending voting rights to long-term expatriates received royal assent. But at stake in the Supreme Court ruling was whether those voting rights could be taken away by a future government.

Dr. Frank, who was born in Toronto and was a Canadian Forces member, and now teaches American Studies at the University of Virginia, explained in an interview with The Globe and Mail on Thursday what it felt like not to be able to vote: “To watch democracy from the outside, it’s sort of like an injury, that acts up every once in a while.”

The court ruled 5-2 that the now-repealed law was unconstitutional. “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,” Chief Justice Richard Wagner wrote for four of the judges in the majority. (A fifth judge wrote concurring reasons.) “These deleterious effects far outweigh any speculative benefits that the measure might bring about.”​

Mr. Duong, who left Canada in 2001 and works at Cornell University in Ithaca, N.Y., told The Globe on Thursday that he has a strong attachment to his native land. “I was born and raised in Canada; my parents still live in Canada. I’m a Canadian, and it’s my obligation to vote and participate in our democratic process.”

A lower-court judge had found the voting prohibition unconstitutional. But the Ontario Court of Appeal then ruled 2-1 that the law could stand, saying that non-residents do not live with the consequences of their votes on a daily basis. The dissenting judge said the restrictions had the effect of making non-resident Canadians second-class citizens. Dr. Frank and Mr. Duong appealed to the Supreme Court.

They are among 1.4 million Canadians who – as of 2009 – had been living abroad for more than five years.

The 1982 Charter of Rights and Freedoms says without qualification that every Canadian citizen has the right to vote.

Canada has always had residency restrictions on voting. During the First World War, the restrictions were eased to allow soldiers to vote. Advance voting was established in 1920 for salespeople and sailors. In 1945, proxy voting was allowed for prisoners of war. In 1970, diplomats and other public servants living abroad, and their dependents, were allowed to vote remotely. And in 1993, the vote was extended to citizens who had lived abroad for fewer than five years.

The federal Attorney-General’s office, in its Supreme Court filing, said the limit on expats’ right to vote is fair. “The legal responsibilities of long-term non-resident citizens under Canadian domestic law are much less than the responsibilities of resident Canadians,” it said. It added that similar limits on voting rights are common in other parliamentary systems derived from the British tradition.

Lawyers for Dr. Frank and Mr. Duong, in their written argument filed with the Supreme Court, said that Canadians who leave the country tend to do so for work-related reasons, but maintain their connection to Canada. “The inability to vote leaves them with no voice in the direction or well-being of the country, even though many of them have strong connections, including family in Canada, and wish to return.” Many of them have no right to vote anywhere, they said. They added that the voting restrictions harm the dignity and sense of belonging of expatriates.

The last major case on voting rights was in 2002, and it was one of the Supreme Court’s most controversial in the Charter era. The court ruled 5-4 that federal prisoners could not be denied the right to vote. “Denying citizen law-breakers the right to vote sends the message that those who commit serious breaches are no longer valued as members of the community, but instead are temporary outcasts from our system of rights and democracy,” then-Chief Justice Beverley McLachlin wrote for the majority.

https://www.theglobeandmail.com/canada/article-supreme-court-rules-voting-restrictions-on-expatriate-citizens-are/

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