Yesterday, the Court of Appeal for Ontario ruled that Parliament can disenfranchise Canadians who live abroad. I summarized the decision, Frank v. Canada (Attorney General), 2015 ONCA 536, in my previous post. Here, I make a number of comments that explain why I believe that the majority is wrong, and Justice Laskin, who dissented ― quite angrily, going so far as to call some of the arguments the majority adopted “inventions” ― is right.
First, the majority’s attempt to tie the right to vote to a “social contract” in which one participates by obeying the laws of Canada and paying taxes to Canadian authorities fails not only because the constitutional text explicitly ties it to something else ― namely, citizenship ― but also because our political practice does as well. Permanent residents too must obey the laws and pay taxes, but they lack the right to vote, no matter how long they have lived in the country. Many permanent residents will have plenty of relevant knowledge, and be affiliated in a myriad informal ways with their communities and even Canada as a whole, in addition to obeying the laws, which the majority says are the things on which “the right to vote is premised.”  Yet they lack this right. That’s because, contrary to the majority’s assertion, that right is premised on something else.
A second, related, point, is that tying the right to vote to obedience to laws and, especially, to paying taxes, can just as easily serve to disenfranchise Canadians in Canada as those abroad. People who live on the margins of society, perhaps in a more or less deliberate attempt to avoid the reach of its laws, or those who do not make enough money to pay much (if any) tax, could be deemed less worthy of the franchise than other Canadians. As Justice Laskin points out, both the evolution of our electoral laws and the Supreme Court’s decision in Sauvé v. Canada (Chief Electoral Officer),  3 S.C.R. 519, 2002 SCC 68 suggest that this reasoning is unconstitutional.
Third, the majority is wrong to invoke the fact that Canadian laws tend not to reach outside Canadian borders as a reason for restricting the expatriates’ right to vote, because that is just a contingent fact about Canadian legislation as it exists now, which can neither be taken for granted nor used to justify the curtailment of a constitutional right. As a matter of law, Parliament is free to legislate extraterritorially. It could, if it wishes, require Canadian citizens who live abroad to pay taxes to Canada on their foreign income ― as the United States requires its expatriates to do ― at its next session. To say that because Parliament does not do so now, Canadians abroad need no voice in electing its members is to let the statutory tail wag the constitutional dog.
Fourth, the majority’s description of the “social contract” as an exchange of obedience to laws, especially fiscal laws, against the right to vote assumes away many important functions of government that continue to affect Canadians who live outside the reach of most Canadian legislation. While it is true that we only (directly) elect legislators, whose main function is to enact laws, we cannot be blind to the fact that in our constitutional system, Parliamentary elections also serve to elect, albeit indirectly, the executive. The executive, in turn, defines foreign policy, and is responsible for a variety of decisions that affect Canadians who live abroad. Will you be evacuated or otherwise helped in a crisis? How will your consulate be staffed? What sort of attitude will you be confronted with at the border when you travel home? And even, what will people think of you when, to the inevitable “where are you from,” you answer, “I’m Canadian”? The answers to these questions depend, if only indirectly and partially, on the results of elections, and thus give Canadians abroad a stake in the government of their country which the majority simply ignores.
Fifth, as Justice Laskin suggests, the sort of country they will return to matters to Canadians who live abroad, no matter how long they do so. The laws enacted today will continue to apply for years, maybe decades, to come. Path dependency is no less real in public policy than in our private lives. Being deprived of a say in the government of Canada today means that you lose that meagre measure of control over its future to which other citizens are entitled, even though you have the same right as they to live there. Indeed, one is entitled to vote, in Canada, on the eve of one’s permanent emigration from the country, but not, outside Canada, on the eve of one’s permanent return.
Sixth and last, at a more philosophical level, the majority’s understanding of the “social contract” is also problematic in its exclusivity. For the majority, one is either a member of the Canadian social contract or of that of some other country. Attachment to more than one society is impossible. If one lives abroad long enough, one simply withdraws from the Canadian social contract, even if one does not become a citizen of one’s new country of resident, and even though, as the majority recognizes, it is quite possible to maintain a subjective attachment to Canada from abroad. Indeed, subjective perception is insignificant. You may consider yourself Canadian, but objectively, you are not. I think that this is a condescending attitude to take, and it is not the least regrettable of the many regrettable features of the majority opinion.
I can only hope that the respondents have the stomach, and the resources, for keeping up their fight (they are, according to a website set up by their lawyers, “considering next steps.”) I can also only hope that the Supreme Court will actually agree to hear their appeal, should they file one. I have, however, no doubt as to what the outcome of such a hearing, if it takes place, ought to be.