Federal prisoners in Canada can vote. But expatriates such as actor Donald Sutherland and university professor Gillian Frank cannot.
On Wednesday, that conundrum will be on display when the Supreme Court of Canada hears Prof. Frank’s constitutional challenge to a federal voting ban on the 1.4 million expatriates who have lived abroad five years or more.
“Having the right to vote is fundamental to being a citizen,” Prof. Frank, who is a member of Princeton’s Center for the Study of Religion, said in an interview.
The case is the biggest on voting rights since the Supreme Court’s controversial 5-4 ruling in 2002 striking down a ban on voting in federal prisons. Mr. Sutherland is not part of the case, but became connected with it after writing in a comment piece in The Globe and Mail in 2015: “There’s a maple leaf in my underwear somewhere.” He could not be reached for comment on Tuesday.
The impact of the case will be huge. Nearly three million Canadians were living abroad for a year in 2009, suggesting the population affected by the voting ban could someday grow, as freer trade creates global opportunities.
It may also provide a hint as to how deferential to government the court now led by Chief Justice Richard Wagner will be in years to come. In the prisoner-voting rights case, then-chief justice Beverley McLachlin wrote the majority ruling, and the McLachlin court went on to stake out strong positions on supervised drug-use clinics, prostitution and the rights of accused persons before she retired last year.
Section 3 of the Charter of Rights and Freedoms says “every citizen” has the right to vote. The federal government argues, however, that the laws that most affect long-term non-residents are “no longer the laws of Canada” but those of the countries they live in.
“Resident citizens are unequivocally full participants in Canadian civic society,” the Attorney-General argues in a filing with the Supreme Court. “They pay income tax on their world-wide income; they are the most fully informed and engaged in local political processes – by virtue of being resident and being directly affected by decisions of their governments; and they are required to obey all domestic laws. Only resident citizens can be compelled to defend Canada in a war.”
That argument carried the day at the Ontario Court of Appeal. In a 2-1 vote, the majority, which upheld the voting ban in 2015, cited Chief Justice McLachlin’s prisoners-rights ruling and said: “Laws command obedience because they are made by those whose conduct they govern.” The dissenting judge said the majority twisted Chief Justice McLachlin’s meaning: “I read that as an uncompromising defence of the right of every Canadian citizen to vote, even those convicted of the most heinous crimes.”
Andrew Bernstein, a Toronto constitutional lawyer who is not involved in the case, said that federal prisoners had a stronger case than expatriates: “Prof. Frank could move back any time he wants. He’s going to be marginally affected if at all by Canadian law. Think of the effects that Parliament can have on a Canadian prisoner.”
Canada has strong enfranchisement laws, according to a court filing from Prof. Frank’s lawyers. It is one of just four democracies, of 60 surveyed, with no restrictions on mentally challenged voters. It is one of 37 that does not disenfranchise federal prisoners. Forty democracies allow voting by non-residents, and some that don’t, such as Britain, bar it only after 15 years.
Prof. Frank, who is from Toronto, moved to the United States in 2001 when Brown University offered him a full scholarship. He has been unable to find an academic position in Canada. But he says he remains committed to Canada.
“My family is there, many of my friends are there, my wife is Canadian, I’m Canadian. I identify with the values I learned there. I have a vested interest and I continue to hope that one day I’ll have the opportunity to return there.”
He said the Canadian government still has authority over him. “If the state is able to reach me, I should be able to reach the state. Without the right to vote, I don’t have that ability. They can reach me through taxes, they can reach me through passport control. They can reach me through any number of laws they can pass that will govern Canadians abroad or at home. He also said the Canadian government can and does pass legislation affecting him.
Prof. Frank and another expatriate, Jamie Duong, brought the challenge after discovering that they could not vote in the 2011 federal election.