Long-term Expatriates Have No Right to Vote: Court of Appeal

immigration lawyer

immigration lawyer

In a split decision, the Ontario Court of Appeal has ruled that Canadians living abroad for more than five years do not have a right to vote in federal elections.

The amendment to the Canada Elections Act allowing the disenfranchisement of expats was brought into effect in 1993 but up until 2007, Elections Canada considered the period to reset any time a citizen returned to the country. Since 2007, Elections Canada has required that citizens who have been living abroad “resume residency” in Canada in order to regain their right to vote.

Previous Decision Reversed

The Court reversed a previous Superior Court decision, rendered in May of last year, in which Justice Michael Penny threw out the voting ban noting that it creates a situation in which convicted felons retain their right to vote but stripped it from otherwise-involved citizens. Justice Penny added that expats in many cases still find themselves subject to Canadian laws and owing Canadian taxes — proving an additional, ongoing connection to the country even while abroad.

The constitutional challenge was mounted by two Canadian citizens, Montreal-born Jamie Duong and Toronto-born Gillian Frank, both currently residing in the United States. They allege the law that creates the five-year rule is both arbitrary and unreasonable and cannot be saved by the federal government’s powers under Section 1 of the Canadian Charter of Rights and Freedoms.

The Court of Appeal found that Justice Penny erred in his ruling by basing his decision on the government’s assertion that expats “do not have the same connection” to Canada as residents. Justice Strathy, writing for the majority, held that this, “… caused the debate to be cast as whether non-resident citizens were worthy of the vote,” instead of focusing on, “Canada’s democratic tradition and the importance of the social contract between Canada’s electorate and Parliament.”

In essence, the court has ruled that allowing expats to vote undermines the legitimacy of the democratic process by putting resident-citizens at the mercy of voters who may not ever be subject to the policies or parties they support with their ballot.

The Dissent

Justice John Laskin, writing in dissent, rejected this characterization of expatriate citizens and thereby opened the door for a possible (and probable) appeal to the Supreme Court. Laskin found Justice Penny’s judgement persuasive; found the government never argued that “preserving the social contract” justified the charter breach in its case and held it was not a good reason to limit voting rights, regardless.

However unless a future SCC decision overturns this ruling, long-term expatriate Canadians continue to be disenfranchised — and with the legislation applying to more than one million citizens, that represents a not-insignificant block of potential voters left out in the cold.

Michael Niren

About Michael Niren

Michael is a graduate of Osgoode Hall Law School in Toronto. He is a member of the Law Society of Upper Canada, the Canadian Bar Association’s Citizenship and Immigration Section and the Associate Member of the American Bar Association. Read more

The content and comments of this blog are not legal advise and and may not be accurate or complete. If you require legal advice, contact a licensed legal practitioner directly. If you post on this blog, you assume full responsibility for disclosing your identity to the public and VisaPlace nor its affiliates are not responsible for protecting your privacy nor your identity concerning your participation in our blog and you assume any risks in participating.

Customer Reviews

Completely smooth process. Rania did a great job in my Canada work permit. The team is absolutely competent and knowledgeable. Alicea was so amazing and was able to answer any of my questions immediately. I had peace of mind throughout the application. I would recommend them to other friends looking for assistance with their applications.

Theressa Jaranillaa week ago

I highly recommend VisaPlace to anyone seeking help with navigating the legal minefield that is Permanent Residency. As someone who is very easily stressed, Lauren & Mariana have saved me a lot of sleepless nights. They are fast, efficient, reliable and honest and I will be telling any of my friends to use them for immigration. Thanks to them, my future with my husband in Canada is bright

Hannah James3 weeks ago

Visa place is the best!!! I use Yasmeen to do paperwork work for my mom to come to Canada and she was amazing. Very helpful and always reply to your email promptly. My experience was awesome everything was a success and I will recommend VISA PLACE to anyone who want quick and successful results. Thank to all the team at Visa Place but a special thank you to Yasmeen again.

Donnica Waugha month ago