January 16, 2019 2:26 pm

COMMENTARY: The Supreme Court made wrong call on expat voting rights

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I would never presume to question the wisdom of the Supreme Court of Canada on matters legal. In that fight, I’d simply be outgunned, as it were, not to mention outnumbered. But the recent ruling in the case of Frank v. Canada (Attorney General) seems an example of where the court got it wrong.

OK, so fine, I’m presuming to question the wisdom.

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The case involved two Canadian men — one from Toronto, one from Montreal. Both men went to school in the U.S. and found work there after graduation. Both say they hope to return to Canada when their employment prospects permit it. Both men attempted to vote in the 2011 federal election, but were denied ballots because the Elections Act denied voting rights to Canadians who’d lived out of the country for more than five years.

READ MORE: Supreme Court affirms long-term Canadian expats have right to vote in elections

I’ll skip over a lot of the legal process in the interests of brevity. Suffice to it say that the Supreme Court eventually agreed with the two gentlemen in a 5-2 ruling, with the majority saying that denying long-term expats the right to vote was an overly draconian way to address whatever concerns the government had, and further, that the government had not demonstrated that there was sufficient basis to those concerns to even warrant the limits on voting rights in the first place.

That’s a bit of a simplification — a friend with a keen legal mind noted that one of the five justices in the majority felt that while this specific law was flawed, other similar laws may well have been constitutional. Still, for our purposes here, it’s a win for the expats — and also something of a moot point. The Liberal government had already passed legislation that granted all Canadians voting rights, regardless of their residency. But the SCC ruling carries a practical effect even so. Some future government, if it were of a mind to restore some version of the residency requirement, could be constrained by this ruling — perhaps completely so.

And that’s a shame. Because the Liberals are wrong. Long-term expats shouldn’t be permitted to vote in our elections.

That doesn’t mean they should never be allowed to vote in a Canadian election again. That would be draconian. But it’s fair and proper for long-term expats to be denied a right to vote until they return to Canada, and five years — the full life of a parliament — is as good a timeframe. The two dissenting justices made this point succinctly and elegantly. They noted that under the old law the voting rights of expat Canadians were not in some way irrevocably infringed, they are, instead, temporarily limited. For how long? That’s up to the expat. They can move back any time and instantly have their voting rights restored. The limit is temporary and conditional.

As it should be. Canadian citizenship carries with it certain absolute rights, even while abroad. A Canadian has a right to enter Canada. A Canadian has the right to seek consular assistance from the Canadian government. But voting should be distinct.

READ MORE: Backgrounder — Canada’s law banning expats from voting constitutional?

As it was until recently. The old law, now repealed and with an SCC stake driven through its heart for good measure, was not intended, per se, to punish or even inconvenience Canadians living abroad. It was intended to recognize and protect the special bond between elected members of the federal parliament and their local constituencies. An oft-overlooked, but critical, feature of our democracy is that Canadians don’t vote in one federal election. Canadians instead vote in hundreds of local elections that all happen to occur on the same day. Local residents choose one of their own to represent their local riding (and its interests) in the capital.

Our political shorthand — horserace polls and narrow focus on the party leaders and national issues — obscures the reality of our system, to our misfortune, I think. Canada would be a better-governed country if our MPs acted less as proxies of their party leader and more as representatives of the specific voters who elected them from their riding. But I digress. The problem with expat voting is that those expats do not live in one of Canada’s communities. They may again, and if so, they can vote there again. But so long as they live somewhere else, though they remain Canadian, their right to vote should be temporarily limited.

WATCH BELOW: Supreme Court considers whether Canadian expats can vote

Expats might argue — did argue, in fact, in this case — that geographic distance does not diminish their emotional or family bonds to Canada. I believe them. I have friends and family living to this day in the suburban Toronto town where I grew up. I still visit from time to time. I keep track of its local news and root for its continued prosperity and success. I lived there once. I care for it still.

But I don’t have the right to vote there — not for mayor, not for councillor or trustee, not for provincial or federal representatives. I’ve chosen to live and work elsewhere. I’m only a 20-minute drive or so away, but I’m in a different city, a different riding. I vote where I live. That’s the way it should be. And I, of course, have every legal right in the world to one day pack up my bags and move back to Richmond Hill, and begin voting there.

I’m tilting at a windmill here, of course. The matter seems settled, certainly for the foreseeable future, even if some narrow legal wording could one day restore the now-defunct limit.

But that’s a shame. Canada’s prior limits on voting rights were appropriate and warranted in a democracy. The SCC has concluded that the letter of our laws says otherwise. This seems an opportune moment to recall a certain saying reminding us what the law often is.

Matt Gurney is host of The Exchange with Matt Gurney on Global News Radio 640 Toronto and a columnist for Global News.

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