Shut Up!

Yesterday, the Court of Appeal for Ontario ruled that Parliament can disenfranchise Canadians who live abroad. The judgment, Frank v. Canada (Attorney General), 2015 ONCA 536, reverses that of the Superior Court, which had ruled that the provisions of the Canada Elections Act that prevent Canadians who have resided abroad for more than five years are unconstitutional. The majority opinion, written by Chief Justice Strathy, endorses the federal government’s argument that disenfranchising Canadians abroad is the least restrictive means to achieve a pressing and substantial objective of preserving the Canadian “social contract.” Justice Laskin has a forceful, indeed in my view a compelling, dissent.

* * *

For Chief Justice Strathy, the key to the appeal is a “social contract” pursuant to which “[t]he electorate submits to the laws because it has had a voice in making them.” [5] Because expatriates need not “submit” to the laws of Canada, it is fair to exclude them from participating in making them. Citizenship by itself is a guarantee (entrenched in the Canadian Charter of Rights and Freedoms) of some rights. However, “[a]dding a layer to citizenship, residence and physical presence can have an important influence on the rights and obligations of Canadians.” [74] Among other things,

[r]esidents, whether citizens or not, pay the full array of taxes that support government programs. Most important, only residents are regularly required to obey domestic Canadian laws. With limited exceptions, the laws enacted by Parliament do not reach outside Canadian borders. What this means, on a practical level, is that while resident citizens may enjoy greater privileges than non-resident citizens, they also bear greater responsibilities and burdens. [74-75; paragraph break removed]

In particular, “[a]s a practical matter, Canada does not purport to legislate extra-territorially in most cases. Nor does it attempt to enforce its laws outside the country.” [106] So long as they stay abroad, it is the laws of their place of residence that apply to Canadian expatriates, and it is to their countries of residence that they pay taxes.

While depriving a Canadian citizen of the right to vote is a “straightforward” [81] breach of section 3 of the Charter, Justice Strathy finds the breach justified with respect to non-resident citizens because, not being subject to all the “responsibilities and burdens” of citizenship, they have withdrawn from the “social contract,” which would be undermined by allowing them to exercise the right to vote. The “social contract” involves a “reciprocity between civic rights and responsibilities” and, more specifically, “a mutuality between the franchise and the citizen’s obligation to obey the law – between political rights and political obligations.” [94] In support of this notion of “social contract,” the Chief Justice invoked a passage from the majority opinion in Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68, at par. 31, which alluded to the

vital symbolic, theoretical and practical connection between having a voice in making the law and being obliged to obey it. This connection, inherited from social contract theory and enshrined in the Charter, stands at the heart of our system of constitutional democracy.

As Chief Justice Strathy notes, “[i]t remains necessary to ask whether Parliament’s intention,” in limiting the ability of Canadians resident abroad to vote, “was to protect the social contract.” [100] While this limitation was mainly justified, the Chief Justice says, by “concerns … primarily directed at the subjective connections of non-residents based on their knowledge and ties to Canada,” the relationship between residence and the duty to obey the law “is an equally important part of this connection and was implicit in the rationale underlying the law.” [103] According to the Chief Justice, this rationale is of sufficient importance to justify depriving Canadians abroad of their voting rights.

The Chief Justice also finds that the restriction imposed by Parliament is proportional to its purpose. It is rational, because “the legislative objective is to maintain the connection between the voters, the lawmakers and the laws,” and “the longer-term non-resident has voluntarily withdrawn from the social contract and has submitted him/herself to another political and legal order.” [131] This is in contrast, says Justice Strathy, to “military personnel, public servants posted abroad and employees of international organizations,” who are exempt from the five-year limitation on their voting rights, because “these citizens have not voluntarily severed their connections with Canada in the pursuit of their own livelihoods – they have done so in the service of their country.” [143] For the others, the five year limit is minimally impairing ― that is to say, it “is a reasonable cut-off.” [144] Although the number, like any number, is to some extent arbitrary, it corresponds to “the maximum life of a Parliament” [151] and “is generally enough time to complete a university degree, a common reason for Canadian citizens to spend time abroad.” [152] It is a reasonable proxy for the distinction between temporary and long-term absences from the country, in addition to being in line with the rules established elsewhere in the Commonwealth (specifically, in Australia and New Zealand). Finally, Justice Strathy concludes that “the solidification of the bond between the electorate and the elected” [156] that results from limiting expatriates’ voting rights outweighs the deprivation, which in any case is temporary, since the citizen recovers his or her right to vote upon resuming residence in Canada.

* * *

Justice Laskin dissents. He observes that this “case raises the constitutionality of the last significant piece of federal legislation denying the right to vote to a group of Canadian citizens.” [161] For him, the denial is unjustified. His first argument, which I will skip here (although I find it compelling) is that the Court should not even have entertained submissions regarding the social contract, which were not made at first instance and for which there was no evidentiary basis. Second, Justice Laskin contends that, contrary to what the Chief Justice found, Parliament’s decision to impose a five-year limit on the expatriates’ voting right did not aim at preserving the “social contract.” Accepting a restriction of Charter rights on this basis is a violation of the rule that a statute’s purpose cannot “shift” between its enactment and the consideration of its constitutionality by a court.

Justice Laskin points out that “not a single parliamentarian, not a single study, recommended a five-year non-residency limitation in order to preserve or strengthen our social contract.” [199] Indeed, the relationship between residence, the duty to obey the law, and the right to vote “is an artifice, conjured up by the Attorney General to avoid running up against the shifting purpose doctrine.” [202] The alleged legislative purpose, Justice Laskin says, was “invented by the government long after 1993; indeed, it appears to have been invented after this case was decided” at first instance. [204]

In any case, even if that objective could justify a restriction of the expatriates’ right to vote, it fails to do so. No fewer than four Parliamentary reports recommending allowing all Canadians abroad to vote, which suggests that the objective is not pressing and substantial. Besides, it is not true that residence in Canada is necessary for participating in the Canadian social contract. The world in which residence was the key to participating in a political community (and in which “only male property owners could vote” [221]) no longer exists. The Charter provides a single criterion for membership in “the community of eligible voters,” “much more suited to the world we now live in,” [221] ― citizenship.

To be sure, “more laws, even many more laws, affect residents than non-residents. But even among residents, legislation does not affect all citizens equally.” [223] It is not the case “that the number of laws a Canadian citizen is subjected to can be tied to the preservation of the social contract.” [223] Justice Laskin also points out, as did the judge at first instance, that the decisions of the Canadian government do, in fact, affect expatriates, and will do so in the future, including after their return to Canada.

Justice Laskin criticizes the majority for the way it used the Supreme Court’s decision in Sauvé, which expanded voting rights, to justify their restriction. For him, “the majority reasons in Sauvé [are] an uncompromising defence of the right of every Canadian citizen to vote, even those convicted of the most heinous crimes.” [229] Sauvé also cautioned against accepting purely symbolic governmental objectives, and specifically rejected the argument “that prisoners were not entitled to vote because they have opted out of membership in the community.” [234]

Justice Laskin also argues that even if the objective of preserving the social contract were pressing and substantial, the five-year restriction would not be proportional to it. The limit, and the exemption for civil servants, members of the military, and their family, “ha[ve] everything to do [with] worthiness” [244] ― the putative worthiness, that is, of the different categories of Canadians who reside abroad. It is not a rational way to preserve the “social contract,” because many expatriates, whatever the reasons for which they live outside Canada, “have not renounced membership in the Canadian polity.” [245] Furthermore, because the exemptions are not tailored to the law’s objective in any meaningful, evidence-based way, the five-year limit is not minimally impairing of the right to vote. Finally, the limit’s positive effects, if any, are outweighed by the harm of the deprivation of the right to vote: laws made today affect how our country will be governed, not just in the immediate future, but for years to come. Justice Laskin points out that

laws made today affect how our country will be governed, not just in the immediate future, but for years to come. Yet Canadian citizens abroad for more than five years … will have no voice in the future direction of their country even though they have family here, intend to return here, and thus will be affected by laws enacted while they are abroad. [252]

* * *

In a majority opinion that does not deign so much as to mention the dissent, the Court of Appeal answers the question of whether Canadians can have a voice in the government of their country after they exit it by a resounding “shut up!” As I indicated above, I think that the majority is absolutely wrong to do so. Justice Laskin’s dissent is correct (except, that is, for his description of J.S. Mill, born in 1806, as an “18th century political philosopher” [203 & 235]). In a separate post to follow shortly, I will make a few additional points that do not so much add to his reasons as sharpen some of his arguments.

UPDATE: The additional points are here.