Guest post by Blain Neufeld
So there will be a federal election in Canada on October 19th. I’m a Canadian citizen. But from 2007 to this year I was not able to vote in federal Canadian elections. The reason is that – despite living in Canada on a regular, albeit sporadic, basis (2-3 months every year, depending upon my teaching schedule) – my primary residence was abroad (Ireland until 2008, the United States from 2008 to 2014). Fortunately, my year in Toronto has ‘re-booted’ my residency here, so I will be able to vote in the forthcoming election. But more than a million other Canadians who live abroad will not be able to do so.Since 1993, Canadians who live abroad for more than 5 years have been ineligible to vote. Until 2007, however, merely visiting Canada was enough to ‘reset the clock’ with respect to one’s status (that is, after a visit, one would have to be away for another 5 years in order to lose the right to vote). In May 2014, Ontario Superior Court Justice Michael Penny ruled that this part of the Canada Elections Act was unconstitutional. Unfortunately, a couple of weeks ago the Ontario Court of Appeal overturned this decision, thereby once again taking away the right of non-resident citizens to vote. Hopefully this case will now go to the Supreme Court of Canada. If it does, I’m optimistic that the voting rights of all Canadians will be affirmed and protected. But until then, over a million Canadian citizens are denied the right to vote.There has been a flurry of editorials and opinions pieces in the Canadian press recently over this issue. The actor Donald Sutherland would like to be able vote again, and made his case in The Globe and Mail. I admire his refusal to become a dual citizen. Disappointingly, however, his piece is little more than a rant. Given his fame, though, it has prompted further public discussion (e.g., this episode of CBC Radio’s ‘The Current’ [the host of which is terrible, but the first two guests have intelligent things to say]).
Central to the decision by the Ontario Court of Appeals is its claim that non-resident citizens should not be able to vote because the laws of the government of Canada do not affect their lives significantly, unlike the lives of resident citizens. This strikes me as both irrelevant and incorrect. I’ll explain why it’s irrelevant below. Why it is incorrect seems obvious: Canadian foreign policy affects non-residents’ lives in significant ways – far more than it does the lives of most residents. Moreover, Canadian citizens have the right to return to Canada at any time. So any laws passed by the government will affect profoundly citizens’ lives upon their return to the country. And of course, many non-resident Canadians have family and other significant relations in Canada, as well as property and other ties. The laws of the Canada directly affect these interests.
Mark MacKinnon, a journalist for The Globe and Mail, makes a solid case that the Court’s reasoning is misguided in his opinion piece, “I am Canadian – but now not as much as I used to be.” A piece at Rabble.ca by Raksha Vasudevan also does a decent job in rebutting the Court’s claim that the laws and policies of the federal government have no significant impact on the lives of non-residents.
In any case, as I mentioned earlier, the ‘impact’ or ‘profundity of effect’ justification for denying non-resident citizens the right to vote is irrelevant. Voting rights are based on citizenship. According to the Canadian Charter of Rights and Freedoms, “Every citizen of Canada has the right to vote in an election of the members of the House of Commons.” If impact were the criterion for determining who should be able to vote in elections, then non-Canadians who reside in Canada should have that right. (And maybe they should have the right to vote. There certainly is an interesting discussion to be had on that question. But the current understanding of ‘citizenship’ and its associated rights and duties, within Canada and most other liberal democratic societies, is not residency-based.) Jackson Doughart makes something like this point in his piece at The National Post.
The five-year limit on non-resident citizens’ right to vote, I should point out, applies to all non-resident citizens, not simply dual citizens who do not reside in Canada. (I mention this because such dual citizens seem to be the focus of some conservative defences of the law.) Now I can understand – and indeed agree with – a requirement that dual citizens vote in only one country’s elections (presumably the one in which they currently reside, or most recently resided). But most Canadians who live abroad are not dual citizens. I am not a dual citizen. (And I probably never will become one. I think that the concept or dual or plural citizenship is philosophically incoherent. However, I’ll try to defend that claim on another day).
Now one difficulty for defending the right of non-resident Canadians to vote concerns the role of ‘ridings’ (electoral districts) in the Canadian parliamentary system. In theory, every Canadian lives in a particular riding, and during an election the candidate who receives the most votes from the people who live in that riding becomes the Member of Parliament (MP) for that riding. But many non-residents don’t have a riding in any meaningful sense. While letting non-resident citizens vote for candidates in the ridings in which they last resided is better than denying them the right to vote altogether, there is, I think, a better option.
This brings me to the opinion piece by Mark Kerten, a researcher at the Munk School of Global Affairs at the University of Toronto. He points out that some other democratic societies provide special representation for non-residents:
Instead of constructing barriers to democratic participation, what a progressive government could, and should, do is to create a handful of members of Parliament to directly represent Canadians who live abroad. France and Italy already have parliamentarians who represent their respective diasporas. Why not have MPs on Parliament Hill to represent the unique interests and diversity of Canadians living abroad? Surely that could only enrich our democracy.
I’ve long thought that Canada should adopt something like the French model and allocate a number of seats in the House of Commons (perhaps 10-12) to non-residents. (If this should ever happen, then my dream of becoming the MP for the riding of the ‘Greater Great Lakes Region West’ might finally come true!)
In any case, I have the right to vote in this election, and I look forward to exercising it on October 19th. Hopefully a new government will come to power on that day, one that takes seriously the rights of all Canadians.