I read this piece in the Globe by Semra Sevi this morning making the case for why Canadian citizens who reside outside of Canada for more than 5-years should be entitled to vote in Federal elections. This is response to the federal government’s appeal of a recent Ontario Superior Court decision in Frank et al. v. AG Canada striking down provisions of the Elections Act which precluded Canadian citizens living outside of Canada for more than 5-years from voting in federal elections. Both the policy and legal arguments for allowing such citizens to vote are misplaced and ignore the local nature of Canadian democracy.
The policy argument, at least as made by Ms. Sevi, appears to be… well… it’s not clear. At best it seems to be that either (i) they have a right to do so (which may or may not be the case, but which I’ll come back to) or (ii) we should treat expatriate Canadians as an asset, and extending the right to vote to such Canadians somehow does that. I’ll deal with the first point below, but let’s consider the second point.
First, there’s no doubt that expatriate Canadians are a potential asset to Canada. So what? So are teenagers, but we don’t let them vote either. They’re an asset whether or not they vote in Canadian elections. Extending or denying them the right to vote doesn’t change that.
Moreover, the policy counter-arguments are strong. A core tenet of liberal democracies is that citizens are both (i) subject to the laws that govern them, and (ii) entitled to take part in enacting those laws. This goes to the core of “responsible government”. While (ii) ensures that governments are responsible to the people they govern, (i) ensures that the people are responsible for the governments that they elect, and have to bear the consequences of their decisions.
Of course, that doesn’t happen when non-resident citizens get to vote. They get to participate in the Canadian political process, but bear few (if any) of the consequences of the decisions they make. This is a point that proponents of allowing non-resident citizens vote and the Court in Frank gloss over. In Frank, Justice Penny dismissed this on the theory that:
“non-residents may well be subject to Canadian law. Many of Canada’s laws have extraterritorial application. Non-residents, leaving aside extradition, may not be subject to enforcement by Canadian authorities if they do not live here but that does not mean they are “not subject to Canadian law.”
This is, of course, an absurd statement. First, very few of Canada’s law have extra-territorial application. Outside of a very narrow handful of laws which apply despite the absence of any Canadian nexus, mostly for crimes which are universally abhorred and which are included only as backstop to make sure that someone can prosecture perpetrators of such crimes no matter where they’re comitted (think war crimes laws, sex tourism laws, etc. – believe it or not, the Criminal Code of Canada has provisions governing certain crimes committed on the International Space Station, see section 7(2.3)). However, the vast majority of Canadian laws have no application outside of Canada. Second, to the extent they do apply outside of Canada, they apply equally to non-citizens. Surely the point of responsible government is that people who get to vote in elections get to do so because they have more at stake in the outcome of those elections than EVERYONE ELSE IN THE WORLD. People residing in Canada have considerably more at stake than those residing outside of Canada over long periods of time.
To be fair, both Justice Penny and Ms. Sevi do make the point that other countries, such as France, Italy Portugal and the United States do have liberal provisions permitting non-resident voting. Then again, I’m not sure I’d hold any of those countries up as models of good governance (couldn’t Ms. Sevi find four countries that aren’t bankrupt?).
More to the point, the case of the United States is an interesting point as it proves precisely the point I’m making here. Yes, the US allows its citizens to vote no matter how long they’ve lived outside the country. It also, uniquely in the civilized world, taxes its citizens regardless of where they live and how long they’ve lived there. This has been a source of considerable concern and annoyance for duel Canadian-US citizens living in Canada who face hefty fines and penalties for failing to file US tax returns for decades. From a policy perspective, the US grant of a broad voting right is consistent with their policy (often much lamented by the rest of the world) of applying their law internationally. For Americans, there’s no taxation without representation, and no representation without taxation. Ditto for Canada which taxes based on residency.
Moreover, these sorts of international comparisons ignore the nature of Canadian parliamentary democracy. The Canadian parliamentary system is fundamentally local. We don’t vote for a president, or vote for a party list of representatives (or for a foreign representative, as in Italy or France). We vote for a local member of parliament, representing a particular region within Canada. That goes to the core of Canada’s parliamentary system. In a large country like Canada, this ensures that local interests are adequately represented in Parliament.
Both Ms. Sevi’s article and Justice Penny’s decision ignore or downplay this aspect of Canadian democracy. In Ms. Sevi’s view, this is irrelevant, because the vote of non-resident voters would be spread out over all Canadian ridings so the “impact would be trivial at best”. Of course, that’s a flippant dismissal of a real concern. After all, elections are often decided by small margins – George W. Bush became president of the US by 500-odd votes (or not, depending on your recount) – many of them made by non-resident US citizens (including a friend of mine). It may be unlikely for one vote to make a critical differences, but it’s not impossible, and the outcome of such votes can hardly be considered to be trivial.
Similarly, Justice Penny’s decision completely fails to grasp this point. In concluding that the restriction on non-resident voting violates the Canadian Charter of Rights and Freedoms, he fails to adequately appreciate the nature of the “right to vote” in the Canadian constitution. The Charter, it should be noted, doesn’t define the right to vote, it merely provides that every citizen has the right to vote in an election of members of the House of Commons. But the nature of that right, subject to very limited exceptions, is (and always has been) the right to elect the member of Parliament in the riding in which you reside. Justice Penny simply misses this crucial point. No other concept of the right to vote would have been meaningful to the authors of the Charter. He’s right that section 3 of the Charter doesn’t impose a residency restriction on the right to vote, precisely because the right itself is the right to vote in the riding in which you reside, and would have been understood as that by the drafters of the Charter. It would have been redundant to impose a residency restriction on the right to vote in the riding in which you reside. Seen in that light, the restriction on non-resident voting doesn’t violate the right to vote, it is the right to vote
To be sure, the Canada Election Act has made a number of of exceptions to this rule, for example, for members of the Armed Forces or diplomats, or Canadians residing abroad for less than 5 years. Yet, in each case, the exception is consistent with the rule. Members of the Armed Forces or Diplomats are typically posted abroad for relatively short time periods and with the expectations that they will return to Canada. As a practical matter, they often factually resident in their home ridings (i.e., soldiers don’t generally take their family with them when they go abroad – so extending this rule is often only relevant, for example, to single soldiers who don’t retain a permanent residence in Canada when they go abroad). Similarly, in the case of Canadians working abroad for less than 5 years, the rule is clearly motivated by a desire not to disenfranchise Canadians who are merely temporarily abroad by ensuring that they must miss (at least) an entire election cycle before they are denied the right to vote. In each case, the exemptions are provided for people with a close (and recent) connection to a particular riding. (As an aside, both Ms. Sevi and Justice Penny characterize the 5-year limit as “arbitrary”. Apparently, they didn’t look to section 4(1) of the Charter which mandates that elections be held (absent special circumstances) every 5 years. The 5-year limit for non-resident citizens losing the right to vote is logically linked to that requirement).
Indeed, part of the problem is that both Ms. Sevi and Justice Penny overlook that politics is largely a “lived” experience. Being able to read the Wawa paper in New York or Hong Kong or Toronto doesn’t give rise to the same sense of connectness to local issues as actually living in Wawa. Humans are political creatures, and our lives our bathed in political discussions, whether its complaints about traffic, schools or hospitals, or overheard conversations about taxes on the train, or foreign policy in cafe, the reality is that living in a jurisdiction gives one a greater awareness of the issues of the day than is possible for someone living elsewhere. For the reason, people who live outside of Wawa, whether they live abroad or elsewhere in Canada, aren’t permitted to choose the MP for Wawa. It’s profoundly depressing to read a Superior Court Judge suggest that the mere fact that a person can figure out the name of a local candidate and the party he or she represents is sufficient “evidence of the voter’s connection to Canada” to merit permitting them to vote. Boy, talk about devaluing the Canadian political system!
If Ms. Sevi has her way, and if Justice Penny is correct (and I expect his decision will be overturned on appeal), one can readily imagine the absurd results and possible mischief. People with no connection to Canada, other than a long distant ties due to citizenship (and keep in mind that Canadian citizenship is both readily obtained and practically impossible to lose), will have a say in the choice of our local representatives. Perhaps more concerning, it could result in Canadian citizens with closer ties to other countries (including countries whose interests are not closely aligned with our own) getting a say in Canadian government – hand’s up everyone who thinks the Tea Party favourite, Ted Cruz, should get to vote in Canadian elections (to his credit, he has apparently renounced his Canadian citizenship). Neither of those scenarios result in an alignment of the government with the interests of the governed.
At the end of the day, liberal democracy is about the governed getting to choose their government. Canadians who choose to live abroad for lengthy periods of time, outside the scope of Canadian laws are, of course, free to do so. Heck, good for them. But they shouldn’t expect to get to make the laws for those who don’t.