The Supreme Court of Canada Restores the Right to Vote for Non-Resident Canadians

By David Beckstead, Vice President, CanCham Thailand

It would probably come as a surprise to many Canadians to learn that a class of citizens had been stripped of their right to vote in the past two federal elections. Yet the Canada Elections Act, enacted by Parliament in 1993, was the basis for denying over a million Canadians of their right to participate in Canada’s democracy.

Section 3 of Canada’s Charter of Rights and Freedoms is unambiguous:

“Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”

In spite of this fairly clear constitutional prescription, the Attorney General of Canada sought to defend rules in the Canada Elections Act which disenfranchised Canadian citizens from voting in federal elections after they had been residing outside of the country for five years. Thankfully, the Supreme Court issued a ruling in January, 2019 (Frank v. Canada (Attorney General), 2019 SCC 1) invalidating these rules. The length of time a citizen has been outside of Canada is no longer a factor in determining whether they are eligible to vote. The result is that all Canadian citizens over the age of 18 will be able to vote in the next federal election, regardless of the length of time they have spent outside of the country.

The Attorney General of Canada’s argument in favour of the restriction can be summed up as follows. The Attorney General conceded that the residency requirement in the Canada Elections Act was indeed a violation of section 3 of the Charter, but it was a reasonable limit and was justifiable in a free and democratic society, in line with section 1 of the Charter. According the Attorney General, the limit on citizens’ voting rights was reasonable because it preserved the social contract between the government and the governed. Since non-resident citizens are not subject to Canadian laws, this argument goes, they should not be allowed to elect lawmakers. According to the Attorney General, it would be unfair to resident Canadians to allow non-resident Canadians to express their preferences at the ballot box.

The majority of the Supreme Court rejected this argument, highlighting the many ways in which non-resident Canadians are (or may be) affected by actions the government of Canada.

Writing for the majority, Chief Justice Richard Wagner observed the following:

“[80] Many of Canada’s best and brightest citizens live abroad — and indeed are encouraged to do so — for such purposes as pursuing educational and professional opportunities, and in the course of their endeavours, they are often ambassadors of Canadian values…”.

In rejecting the Attorney General’s arguments, Chief Justice Wagner stated further that:

“[82] Voting is the cornerstone of our democracy. Denying citizens the right to vote not only strikes at the heart of their fundamental rights, but also comes at the expense of their dignity and their sense of self-worth…”.

Many of us who live in Asia may sometimes feel less connected with Canada and the issues being considered by the government in Ottawa. Geographical limits make it more difficult to return home as regularly as expats living in the US or other countries in Canada’s near abroad. This does not justify the view that our connections with Canada are somehow less significant. Actions of the Canadian government affect all Canadians, regardless of where they regularly reside. Canadian lawmakers could enact laws in ways that would have profound impacts on non-resident citizens. Importantly, Canadian foreign policy affects non-residents directly in ways which are far more significant than any impacts felt by Canadian citizens who reside in Canada. In case there were any doubts about this point, recent tensions between Canada and China should provide clear evidence of how Canadian citizens residing abroad can be directly and personally affected by actions of the Canadian government.

Many expats do not bother to vote in Canadian elections; most are probably not even aware that they had lost their right to vote, and the Supreme Court has now restored this right. I can understand this apathy. Canadian comedian Norm Macdonald noted that the difference between elections in Canada vs. elections in America is “elections in America mean something. You vote for the wrong [person] and the whole world blows up.” Meanwhile, according to Norm, Canadians vote based on their views of a particular bridge being built – hardly a serious concern for most non-residents.

The government of Canada is currently considering the potential of an ASEAN-Canada free trade agreement. Canada is a founding member of the Comprehensive and Progressive Agreement on Trans-Pacific Partnership (CPTPP), along with Vietnam, Malaysia and Singapore; the government of Thailand is currently considering acceding to the CPTPP. Actions taken by the government of Canada have the potential to impact our lives, even if we are living on the other side of the world.

There will be a federal election in 2019, and citizens will be able to vote regardless of the amount of time they have been outside of Canada. This will be a good opportunity for all non-resident Canadians to exercise their constitutionally protected right.