Canada Supreme Court: disenfranchising expatriates unconstitutional

On January 11, in a 5 to 2 decision on the case Frank v. Attorney General of Canada (2019 SCC 1), Canada’s Supreme Court ruled unconstitutional federal legislation that had disenfranchised expatriate Canadians residing outside Canada for five years or more. The case was an appeal of an earlier 2 to 1 Ontario Court of Appeal decision on a case originally brought by two Canadian citizens living and working in the United States who were denied the right to vote in the 2011 federal election. The denial was consistent with legislation that had been in force since 1993 but had not previously been enforced. The case had earlier (on December 13, 2018) prompted the Liberal government to change the law, but the SCC case proceeded in order to prevent future reversions. In the ruling, Chief Justice Richard Wagner wrote that “Women, racial minorities, individuals formerly described as having a ‘mental disease’, penitentiary inmates, and Canadian residents living abroad in service of Canada’s armed forces and public administration were once excluded but now have the right to vote.” Further, 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.” The ruling continued: “It is unclear how the fairness of the electoral system is enhanced when long-term non-resident citizens are denied the right to vote. The deleterious effects on affected non-resident citizens, on the other hand, are serious. Denial of the right to vote, in and of itself, inflicts harm on affected citizens; proof of additional harm is not required. The disenfranchisement of long-term non-resident citizens not only denies them a fundamental democratic right, but also comes at the expense of their self-worth and their dignity.” According to the ruling, it is clear that denying the right to vote after five years abroad “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” and that “Many nonresident citizens maintain deep and abiding connections to Canada through family, online media and visits home, and by contributing taxes and collecting social benefits. Likewise, no correlation has been shown between residence and the extent to which citizens are affected by legislation.” Democratic Institutions Minister Karina Gould wrote that “allowing more Canadians to participate in the electoral process strengthens our democracy.” Section 3 of Canada’s Charter of Rights and Freedoms states that “every citizen of Canada has the right to vote in an election of the members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”

For detailed information on electoral rights in Canada, check out our CER 2017 database, and read Willem Maas‘ GLOBALCIT report on access to electoral rights in Canada. Willem Maas is also the author of this news item.