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Ambassadors or Outsiders? The Constitutionality of Non-Resident Voting in Frank v Canada (Attorney General)

–Sarah Burton, Doctoral Candidate, University of Ottawa

The Supreme Court of Canada recently ruled that the legislative disenfranchisement of certain non-resident citizens was unconstitutional. While Frank v Canada (Attorney General) 2019 SCC 1 ultimately turns on deference, the decision raises a number of questions about the heart of democracy that will have long term impacts for Canadian law. After flagging Frank’s key takeaways, this post explores a debate on national identity that underpins the competing opinions.

For the majority and dissent in Frank, non-resident voting is emblematic of the broader question of how we ought to treat traditional borders in a globalized world. The competing judgments do not resolve this issue, but they do provide insight into the slippery nature of national identity arguments. Frank also offers a reasoned articulation of divergent legal and political views that will continue to shape liberal democracies in the year to come.

Frank was a legal challenge launched by two Canadian citizens who were raised in Canada, but who had lived in the United States for several years. They commenced constitutional challenges after being denied ballots in Canada’s 2011 federal election, pursuant to a legislative scheme that permitted non-resident citizens to vote only if they had “…been absent from Canada for less than five consecutive years and [intended] to return …as a resident.”

Canada’s constitutional entitlement to vote is tethered to citizenship. Section 3 of the Charter provides that “[e]very citizen of Canada has the right to vote” in federal or provincial elections. Like all Charter rights, however, this is subject to reasonable limitation.[1] Frank asked if the 5-year residency rule was constitutionally valid in a federal election.

In a departure from pre-existing provincial and international decisions, the majority found that it was not. Four of seven justices held that the restriction was not a proportionate mechanism by which the goal of electoral fairness could be pursued (an additional judge provided a concurring opinion). In dissent, two justices adopted a stance in line with most other Westminster systems. Parliament, in its view, should be entitled to deference when legislating on matters of political morality.

The crux of the disagreement turns on deference. For the majority, laws that disenfranchise voters demand stringent justification. For the dissent, laws shaping the relationship between citizens and state are unavoidably moral, and judges should be hesitant to intervene.

Frank will have implications that stretch beyond the decision itself.  First, the majority’s reasoning plainly invites a challenge on age restrictions to voting. Blanket disenfranchisements must be “carefully tailored” and supported by evidence of harm to pass the majority’s rigorous constitutional scrutiny. Arbitrary dividing lines, such as the 5-year cut-off for non-residents, are not minimally impairing. As aptly noted by the dissent, this approach calls into question all government limits on voting, particularly those related to age.

Second, a disagreement on the language to use during a proportionality analysis could raise longstanding questions of anti-government bias in Charter litigation.  Charter analysis tends to use the words “infringement” and “limitation” interchangeably, as was the case in Frank. The dissenting judges argue the word “infringe”  should only be invoked if a law is found unconstitutional. To do otherwise is not only incorrect, it stacks the deck against the government, and fundamentally distorts Canadian constitutional discourse.

Third, the dissent’s decision to assess deference based on a “positive” vs “negative” conception could impact Charter litigation far beyond elections law. In the dissent’s view, “positive” rights are entitled to deference because they require legislative specification to “breathe life” into the right. This draws the court into murky debates regarding the accuracy of this dichotomy, and the ability to manipulate rights into positive and negative forms. Astute government lawyers will no doubt pick up on this pandora’s box, and craft deferential arguments out of this ambiguity.

Lastly, there is a subtle but impactful debate underpinning the judicial exchange. The competing opinions espoused divergent views on how globalization should impact Canada’s legal developments, and its conception of self. This included the oft-trodden debate on whether foreign laws should be invoked in support of a proportionality analysis. It also, however, encompassed a broader debate on how Canada ought to conceive of global citizens. In Frank, non-resident voters become a symbol of a rapidly changing political battlefield in liberal democracies around the globe. In the age of globalization, should Canada (or any country) embrace a cosmopolitan conception of self, or should we reinforce a territorial and distinctly national identity?

For the majority, Canadian voting policy ought to reflect the interconnected world we live in. Laws should recognize that Canadians live abroad while still maintaining close connections with Canada. Non-resident voters are Canada’s “best and brightest” who act as “ambassadors of Canadian values”.

For the dissent, non-residents leave Canada for any number of “non-ambassadorial” reasons, including better career prospects, lower taxes, or a preference for another country’s values. These citizens are not impacted by most Canadian laws, and their views are appropriately ignored until they re-establish residence in Canada.

Despite espousing impassioned opinions on each side of the debate, neither side carried their philosophical position onto the question of foreign law. The majority viewed the wealth of foreign law (including two recent ECtHR decisions and a mountain of foreign legislation) as completely irrelevant. The dissent, conversely, argued that Canada benefits from considering what our international peers are doing.

These disagreements mirror the cosmopolitan-nationalist argument raging in liberal democracies around the world. In a manner telling of the issue’s complexity, neither the majority nor dissenting opinions are consistent in tackling these issues. Frank demonstrates that these arguments are polarizing and impassioned, but also that they are fluid and opportunistic. The majority argues that globalization demands embracing external opinions from voters, but not on voting. The dissent wants Canada to listen to our international peers by silencing our external citizens. Frank comes down on the cosmopolitan side, but cannot resolve the larger philosophical debate. The decision does, however, provide a reasoned articulation of these competing visions of our future. It also demonstrates that the debate, which has been fiery in recent years, will continue to burn bright in 2019.

Suggested Citation: Sarah Burton, Ambassadors or Outsiders? The Constitutionality of Non-Resident Voting in Frank v Canada (Attorney General), Int’l J. Const. L. Blog, Jan. 31, 2019, at: http://www.iconnectblog.com/2019/01/ambassadors-or-outsiders?-the-constitutionality-of-non-resident-voting-in-frank-v-canada-(attorney-general)


[1] Under s. 1 of the Canadian Charter, all rights and freedoms are subject to reasonable limitations proscribed by law in a free and democratic society. The reasonableness of these limitations is determined in a proportionality analysis that examines the legislative objective, rational connection, minimal impairment, and general proportionality of a limitation on rights.

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Published on January 31, 2019
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