Voting ban for long-term expats unconstitutional

A recently repealed law that barred Canadians living abroad for more than five years from voting in federal elections was an unjustified violation of the Constitution, Canada’s top court ruled on Friday.

In a long-awaited decision that solidifies voting rights, the Supreme Court of Canada rejected government arguments that the law, enacted in 1993, promoted electoral fairness.

Writing for the 5-2 majority, Chief Justice Richard Wagner called the right to vote a “core tenet” of Canadian democracy. Any limit, he said, would have to have “compelling” justification something the government had failed to offer.

“The vague and unsubstantiated electoral fairness objective that is purportedly served by denying voting rights to nonresident citizens simply because they have crossed an arbitrary five-year threshold does not withstand scrutiny,” Wagner said. “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.” The impugned provisions of the Canada Elections Act had been on the book for decades but it was only under the Conservatives of then-prime minister Stephen Harper that Elections Canada began active enforcement.

After being denied the right to vote in the 2011 election, two long-time expats living and working in the United States, Gill Frank and Jamie Duong, launched the charter challenge. Essentially, Frank and Duong argued that nothing warranted the abridgment of their constitutionally-guaranteed right to vote. They insisted they maintain deep ties to Canada, and taxes and other laws passed by Parliament still affect them.

For its part, the federal government conceded the five-year limit violated the Constitution. However, it argued the measure was democratically justified on fairness grounds because resident Canadians are directly affected by Parliamentary decisions, unlike those abroad.

The Supreme Court disagreed, saying the harms caused by the law outweighed any “speculative” benefits it might have.

“The measure improperly applies to many individuals with deep and abiding connections to Canada and to Canadian laws (and) does so in a manner that is far broader than necessary to achieve the electoral fairness objective,” Wagner wrote. “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.”

The expat voting issue took on prominence in the 2015 election and the campaigning Liberals promised a review. After winning office, the government under Justin Trudeau, which faces an election in October, passed electoral-reform legislation last month that did away with the five-year provision.