Gillian Frank is a Canadian lecturer at Princeton University. Frank is suing the federal government for the right of Canadian citizens living abroad to vote.
The time has come to restore expats' right to vote from abroad. During this past election, the Conservative government enforced a policy that barred more than a million expat Canadians from voting by special ballot from outside of the country. The Conservatives spent more than $1.5-million of taxpayer money in legal fees to orchestrate this systemic disenfranchisement.
Currently, Canadians living abroad for more than five years are not allowed to vote by mail and face an absurd and prohibitive mishmash of rules if they wish to vote in person. For example, if an expat physically returns to Canada, they can vote in person at an advance poll or on election day in their former riding, but, unlike a resident Canadian, they can not vote by special ballot at their local returning office.
An expat may run as a candidate in any riding in the country; but if they do so, they cannot vote for themselves unless they are running in their former riding. Some expats can vote if they are employed by an international organization of which Canada is a member but others cannot. Some expats can vote because they live with a member of the armed forces who is exempt from the five-year rule. This living arrangement need not be spousal; a friend, a relative, a staff member could all maintain their voting rights by virtue of living with an exempt expat. These rules are unwieldy, contradictory and undemocratic. In most cases, they limit the right to vote to expat Canadians that can afford to travel back during an election.
Apologists for the status quo will claim that policies barring expats from participating in federal elections began in 1993 and have been on the books ever since. That is a half-truth at best. In May of 1993, the Progressive Conservative Party passed legislation that granted all Canadians living abroad the right to vote by special ballot for up to five years. Previously, most expats had been unable to vote by special ballot.
Under subsequent Liberal administrations, Elections Canada interpreted the five-year rule generously in response to the concerns of Progressive Conservative MPs who wanted to protect the voting rights of Canadian missionaries living abroad. As a result, the Chief Elections Officer allowed all Canadians to reset the five-year clock by visiting Canada. As the CBC explained to voters in 2004, "even a flight change at a Canadian airport counts" to re-enfranchise an expat Canadian.
This loosely enforced policy remained in place until the 2011 election when Elections Canada –without explanation – began enforcing a different interpretation of the five-year rule. In that election, many Canadians living abroad – myself included – found out that the five-year reset no longer applied.
We learned that whether you were an NHL player or an aid worker, a journalist or an entrepreneur, an entertainer with their name on Canada's walk of fame or an educator teaching English as a second language, the new bureaucratic interpretation rendered us second-class citizens.
Angered at our disenfranchisement, Jamie Duong and I sued the government in Ontario Superior Court in 2012 for our right to vote. In 2014, Justice Michael Penny struck down the law prohibiting Canadians living abroad from voting.
The Conservative government moved determinedly to limit expat-voting rights. And, in July of 2015, in a split decision, the Ontario Court of Appeal overturned Justice Penny's 2014 ruling. In so doing, it accepted the Conservative government's argument that 1.4 million citizens were not really part of our country's social contract.
In the runup to the election, Canadians abroad rejected the view that we are no longer part of the country's social fabric. Donald Sutherland focused attention on expat voting rights while numerous citizens wrote powerful op-eds to object to their marginalization. A group of expats held a rally in New York City to protest against Stephen Harper's policies and many Canadian expat groups held election-night viewing parties and hoped for a more democratic Canada.
Revealing how much voting meant to them, two expats even ran for Parliament to draw attention to the issue. Strikingly, a number of Canadians paid hundreds, if not thousands of dollars, to exercise a Charter right that should have cost them no more than postage. Members of the expat business community also raised their voices. Canadian Chambers of Commerce in Malaysia, Indonesia, Thailand, Vietnam and Japan wrote an open letter to Canadian politicians reminding them that Canadians abroad engaged in "business and trade interests" and are also "committed to enlarging Canadians' and Canada's presence internationally." By the end of the election, the Liberal Party and the NDP both endorsed the voting rights of Canadians abroad.
This past October, the majority of Canadians rejected Mr. Harper's vision of a Canada divided into first and second-class citizens. They recoiled at the Conservatives' perverse policies that sought to have the government choose voters rather than having voters choose the government. Instead, they endorsed Justin Trudeau who appealed to our better angels by reminding us that, "A Canadian is a Canadian is a Canadian." Now that he is Prime Minister, Mr. Trudeau should transform these words into action and cleanly break with the xenophobic policies that characterized the Harper era. At this moment, we are asking the Supreme Court to overturn the Court of Appeal decision. The Prime Minister and his new minister of Justice should instruct the Attorney-General not to challenge Frank v. Attorney-General. If the Supreme Court decides to hear this case, the government should decline to defend the litigation.
Regardless of what the Supreme Court decides, the new government should welcome 1.4 million Canadian citizens back into the body politic by amending the Canadian Elections Act and restoring their right to vote from abroad. Doing so would put Canada in step with progressive democracies around the world. It would also fulfill the promise of Section 3 of the Charter of Rights and Freedoms, which states, "Every citizen of Canada has the right to vote in an election of the members of the House of Commons or of a legislative assembly and to be qualified for membership therein."
The Charter recognizes that the right to vote dignifies and empowers citizens. It protects all Canadians with its unqualified language and tells us that every Canadian, regardless of where she or he resides, should have the right to exercise their citizenship to its fullest capacity.