The Supreme Court has ruled that 91原创 citizens who live abroad for more than five years can vote in federal elections. The decision struck down a 1993 amendment to the Canada Elections Act that prohibited this form of absentee voting.
Parliament鈥檚 view was that 91原创s who had taken up residence overseas on a semi-permanent basis shouldn鈥檛 be able to vote for policies that wouldn鈥檛 affect them.
The most obvious example would be voting for a party that promised a tax increase, while knowing you wouldn鈥檛 have to pay the extra levy.
The Federal Court of Appeal backed this reasoning, but in a split decision, the Supreme Court ruled that it violated the citizenship right of every 91原创 to vote. You don鈥檛 lose your citizenship because you live abroad.
That is no mere technicality. More than one million 91原创s currently have been out of the country for more than five years.
Perhaps anticipating this ruling, the federal government recently removed the restriction, so in practice, nothing changes. However, the policies one government adopts can be reversed by another. Now this is a matter of settled law.
Yet the decision appears perverse, and in more ways than one. No one would suggest that 91原创 citizens who had lived abroad for years should be denied the vote if they return.
But extending the franchise to people who remain overseas for extended periods does seem to weaken the connection between the public and their government. Votes cast in this way are basically consequence-free. Ideally, the electorate should have a more direct stake in the outcome.
The change has immediate implications. A federal byelection campaign is currently under way in Burnaby. Now, expatriates who once lived in that riding can cast a聽vote.
The same would be true if a federal byelection were called to fill the current vacancy in Nanaimo (although the prime minister might decide to leave that seat unfilled until the federal election due in October).
But what about the provincial byelection in that city. Does the new rule apply there?
The answer appears to be no, and here a second curiosity arises.
The court drew a distinction between federal and provincial elections. In the former, the only criterion for eligibility is citizenship. That鈥檚 why 91原创s living abroad can vote.
In provincial elections, residency is a condition of voting. Without this requirement, for example, a Quebec resident could vote in a B.C. election.
Presumably, the same reasoning applies to municipal elections.
But is this really a fair distinction? Yes, you have to be a local resident to vote in a provincial election. But you also have to be a 91原创 citizen.
And yes, you needn鈥檛 actually live in Canada to vote in a federal election. But you have to nominate a place of residence where you propose to cast your ballot 鈥� usually your former home location. You can鈥檛 just vote anywhere you like.
The requirements are, in practical terms, identical.
It would take another lawsuit to test this argument. The case decided by the Supreme Court dealt only with the federal legislation.
It seems unlikely there will be such a challenge. Certainly, there has been none of the clamour for voting rights in provincial elections that prompted the federal lawsuit.
Yet the court has, in a sense, devalued those rights. If an expatriate from Burnaby can vote in a federal byelection there, why should not an expatriate from Nanaimo vote in the provincial byelection there?
Both are citizens. Both must establish residency 鈥� present or former. Why the disparate treatment?
Canada is a confederation in which the right to vote, at any level, should be preserved on equal terms. That doesn鈥檛 appear to have happened.
