Tuesday, April 19, 2011

On the right to vote

As I am currently living abroad, I recently familiarized myself with Elections Canada’s rules regarding special ballot provisions so that I could vote in the federal election. It was only then that I discovered with some surprise that Canadian citizens who have lived outside of Canada for more than five years are ineligible to vote (with the exception of employees of the Canadian federal or provincial governments, certain international organizations, and members of the Canadian Forces – and members of their families). 

While the rule doesn’t apply to me because I haven’t been away that long, over the past few days I’ve seen a few other people on Twitter mention surprise at discovering they were unable to vote. (Apparently the rule has been interpreted by Elections Canada in the past to allow people to vote so long as they had visited Canada within the preceding five years, but this is no longer the case). 

My initial reaction was to suggest with near certainty that any Charter of Rights challenge to this provision of the Canada Elections Act would be successful. To my knowledge, no challenge to the federal law has been made since it was first enacted in 1993. In the leading Supreme Court case on the right to vote under s. 3 of the Charter, the justices took a virtually absolutist position on voting rights when it struck down prohibitions on prisoner voting. The Court actually dealt with this issue twice: first in 1993 when it struck down a total ban, and then in 2002 when a sharply divided Court invalidated the federal response legislation which prohibited from voting prisoners sentenced to two or more years. The majority reasons in the 2002 case effectively say that there are no reasonable limitations on prisoner voting. In other cases the Court has also struck down provisions that prohibited federal judges from voting, and that deprived people with certain mental illnesses from voting. 

Not all Charter claims win out. One petitioner lost his challenge to a Quebec law that required at least six months residency in the province to be allowed to vote in the Charlottetown Accord referendum (which was federally administered across Canada except in Quebec, where the vote was administered provincially). The Court determined that the Charter’s voting rights only applied to elections, not referenda (questionable reasoning, but it doesn’t really apply to the rule I’m discussing). 

However, I’ve now comes across important lower court cases that make me less sure that a Charter challenge to the five-year residency rule would be accepted by the courts. In separate cases, laws relating to residency rules for elections in Ontario, Saskatchewan and the Yukon have been upheld as constitutional (there may be cases relating to other provinces, but these are what a quick search generated). In all three cases, the relevant laws required a six-month residency prior to the election for residents to be eligible to vote. In all three cases the justices upheld the restriction as a reasonable limit on voting rights. 

Although now I’m less certain, I still believe that the current Supreme Court would strike down the five-year requirement for voting in federal elections. First, none of these other cases appear to have been appealed to the Supreme Court (it’s possible the Court declined to grant leave to any of those appeals, but I don’t think that’s the case). The Supreme Court isn’t shy about overturning lower courts, especially on highly salient issues like this. 

Second, and more importantly, I think one can draw an important distinction between provincial residency and national residency. Residency requirements are more legitimate at the provincial level because few would accept the notion that one could vote in one province while residing (and voting) in another. Indeed, this latter point applies to any number of government services, like public health insurance: benefitting from services from multiple provinces simultaneously shouldn’t be permitted, and is generally conditional on residency. On a broader level, it’s important to recognize that voting is a right of citizenship, and our citizenship is tied to the national level of government, not the provincial one (Quebec sovereigntists would disagree, but alas). This is not to say that federal elections are more important than provincial ones, but it is important to recognize that citizenship represents a nearly immutable attachment to one’s society that I think supercedes the rights and responsibilities implied by mere residency. 

This logic might extend to those critical of dual citizenship (after all, why should one be permitted to vote in multiple countries but not multiple provinces). I think the question of dual citizenship is a separate issue. Nothing in the Charter would necessarily require Canada to recognize dual citizenship, for example. That said, I don’t think the Court would need to entertain that particular question in order to rule on the five-year requirement at issue here.

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