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.

Sunday, April 10, 2011

NHL Playoffs: 1st Round Predictions

It's that time of year - the 1st Round of the NHL Playoffs are upon us. Here are my predictions:

EASTERN CONFERENCE

Washington (1) v. NY Rangers (8): Rangers in 7

I'm starting off with a big upset pick. Despite winning the East, the Capitals have been wildly inconsistent all year. This isn't a team built for the playoffs. Coach Bruce Boudreau has got them playing a better, more cohesive defensive system this year than last, but that's not saying much. Also, their goaltending is on the weaker side among the other Eastern playoff teams. The Rangers have one of the best goalies in the league and despite offensive struggles, scored more goals than the Caps all season. New York also outmatches the Caps in size, toughness and night-to-night EFFORT. That said, the Rangers need to watch out for Washington's speed and skill - two things which might end up making my upset pick look like a joke.

Philadelphia (2) v. Buffalo (7): Flyers in 5

The Flyers are arguably the most stacked team in the NHL, especially up front. Given the Sabres' injury woes this year, I'm surprised they made the playoffs, to be honest. Also, Ryan Miller - usually one of the league's top goalies - had a subpar year to say the least. Even though Philly had a fairly weak finish to the regular season, I'm looking for them to roll over the Sabres in short order.

Boston (3) v. Montreal (6): Habs in 7

Easily the most anticipated 1st round series of the playoffs, and you don't have to be a Canadiens fan like me to say that. Underlying the series is a deep-seated hatred between the two clubs, only intensified by the Chara hit on Pacioretty just over a month ago. Though this is arguably a heart-over-head type of prediction, I don't think it's ludicrous by any means to see Montreal coming out on top. Despite Tim Thomas' insane numbers in the first half of the season, he was very much human in the second half. If Carey Price can match the brilliant consistency he's had all year, the goaltending in this series is a wash. Montreal proved they can play against a deep and tough team like Boston by winning the regular season series 4-2. The key will be discipline. If the Habs are sloppy, they're toast. The Habs have done a remarkable job showing they can play solid D all season long without Markov or Gorges. Provided the Habs scorers show up - especially Plekanec, Gionta, and Cammalleri - beating Boston will become more reality than sweet, sweet fantasy.

Pittsburgh (4) v. Tampa Bay (5): Lightning in 6

It's really impressive how well the Penguins have played without leading scorers Crosby and Malkin. They've done a particularly good job from a defensive standpoint. Moreover, goalie Fleury easily outmatches the weak set of guys the Lightning have between the pipes. That said, I think Tampa is so stacked offensively that they can push by Pittsburgh. Perhaps most importantly, there's no sign of Crosby returning in the 1st round; despite being symptom free and doing full workouts, Crosby has yet to be cleared for contact in practice. If he had been available, I think he would've tipped the scales the other way. Since he's not, look for Stamkos, Lecavalier et al to lead the Lightning to victory.


WESTERN CONFERENCE

Vancouver (1) v. Chicago (8): Canucks in 5

Vancouver fans should be salivating at facing the defending Stanley Cup champions - a team that has given them the fits in recent playoffs past. Missing many of the big role players that helped them win last year, Chicago doesn't stand a chance against a team that's been firing on all cylinders for nearly the entire season. With two deadly scoring lines, a strong D and Luongo looking like himself, Chicago - who barely squeaked into the playoffs - are looking at a quick and merciless early exit.

San Jose (2) v. Los Angeles (7): Sharks in 6

Losing Kopitar to an injury a couple of weeks ago seems to have done something to the Kings' psyche. For most of this season I might've picked LA over San Jose with little thought. But San Jose had the offensive edge to begin with, and momentum is a big deal in hockey. Look for Niemi, who helped the 'Hawks win it all last year, to outperform the inconsistent Jonathan Quick for a 1st round win.

Detroit (3) v. Phoenix (6): Red Wings in 5

I'm almost more interested to see if the Coyotes will even be able to sellout their playoff home games. Phoenix has the edge in goaltending here (in fact, I don't think Howard will even get Detroit out of the 2nd Round), but in every other category the Wings simply dominate. Time to move this franchise back to Canada, Gary.

Anaheim (4) v. Nashville (5): Ducks in 6

A lot of people are picking Nashville as a potential dark horse candidate this year. Certainly the play of Pikka Rinne gives them a shot at stealing a series. But let's be honest, their top scorer is Sergei Kostitsyn. It's an incredible turnaround for a kid who last year rode more pine than a lumberjack, but his 23 goals doesn't exactly match the output of guys on Anaheim like Corey Perry (50), Teemu Selanne (31) and Bobby Ryan (34). Maybe Rinne will work some magic, but I just don't see the Predators overcoming the odds.