Tag: voting

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Renewing date of departure by physical presence in Canada

TL;DR many Canadians in the US have more ways to vote, even under the 5-year limit, than previously thought.

A week ago, I mailed in my special ballot to Elections Canada. I can now say I’ve voted in the 2015 Canadian federal election!

There’s been a lot of discussion among Canadians at HLS, and folks in the Harvard Graduate Student Canadian Club, about the logistics of voting in this election. Notably, while most of them don’t have to deal with having a green card (as I do), some grad students may question how the 5-year limit applies to them.

Letters from Elections Canada, sent to two students who emailed them to inquire about logistics, support two conclusions.

1. Voting physically in Canada still possible

Voters who have been living abroad for 5 consecutive years or more and who are not exempt from the 5 year limit may vote in person at the advance polling station or the regular polling station corresponding to an address for which they have a proof of address (they cannot vote by special ballot).
– Elections Canada, in response to Peter W[1]

The provisions of the Canada Elections Act that prohibit registering to vote by mail from abroad after five years only apply to the special ballot. If you are a Canadian who has been a nonresident for more than five years, apparently you can still vote in person. (Canadian news has reported instances of people successfully using this “loophole.”) Advance voting days are October 9–12, conveniently during Canadian Thanksgiving and Columbus Day in the US.

2. Fluid definition of residency—unlike taxation and immigration

Thank you for your email … in which you requested information for students who have been living outside for more than five years. There is no differentiation between student voters abroad and non-student voters abroad; the five-year rule remains the same.

I would like to take this opportunity to clarify that there is no minimum period of time that an elector must have been in Canada in order to be considered as having resided there. It is based on where you consider your home address to be and the date of departure is based on the last day you consider yourself having lived in Canada.
– Elections Canada, in response to Peter W[2]

“Residing” has been interpreted here in the most liberal way possible by Elections Canada. It’s as though they are trying to preserve the broadest scope of voting rights possible in light of the Court of Appeal for Ontario ruling. (Good for them!)

The paragraphs quoted provide the basis for this interpretation:

Any instance of physical presence in Canada can be enough to renew your date of departure if you considered yourself to have lived in Canada during that stay.[3]

Elections Canada is not asserting an objective test of residency. They are not inquiring into whether the U.S. Department of Homeland Security treats you as a resident alien. They do not care when you became a nonresident for tax purposes on the CRA’s books.

So, in my interpretation, the following example set of facts satisfies their criteria and entitles the citizen to register to vote by special ballot (critical facts highlighted):

  1. Alice is a Canadian citizen.
  2. Alice is 23 years old.
  3. Alice ordinarily lives in a rented apartment in Cambridge, MA.
  4. Alice attends HLS on an F-1 student visa.
  5. Alice started studying in the U.S. on an F-1 visa 6 years ago, since August 2009.
  6. Alice intends to return to live and work in Canada after graduation.
  7. Alice last lived in the Trinity-Spadina riding in Toronto, ON, before becoming a student in the U.S.
  8. Alice last visited her parents on September 1, 2015, at that same residence in Toronto, for one day. She left on September 2.
  9. Alice does not consider any other place to be her permanent place of abode.
  10. Alice considered herself to have lived in Canada during that day. (remember, “no minimum period of time” is necessary)
  11. Alice is a temporary resident outside Canada for fewer than five years, and may register to vote by special ballot with a departure date of September 2, 2015.

For an alternative hypothetical, see footnote 4.[4] Remember that these are only predictions of eligibility.

TL;DR many Canadians in the US have more ways to vote, even under the 5-year limit, than previously thought.

Again, just a reminder: I’m not a lawyer (yet). Don’t take this as legal advice. Do take it as the opinion of someone who believes the right to vote is constitutionally guaranteed to all Canadian citizens, and who wouldn’t mind seeing this tested in a legal challenge.

Footnotes

Footnotes
1 ↑ Posted on Facebook in the HLS Canadians 2015–2016 group.
2 ↑ Second paragraph is substantially identical in a separate response to Jacob Q.
3 ↑ There is a textualist reading of the statute that supports this interpretation, based on the term “consecutive,” which would be interrupted by stays in Canada. See Canada Elections Act, S.C. 2000, c 9, § 222(1)(b) (applying the five-year limit to those “residing outside Canada for less than five consecutive years”).
4 ↑ Bob is a 22-year-old Canadian citizen, who works in New York City on post-completion OPT on an F-1 visa after graduating from a 4-year undergraduate in the U.S. Prior to his undergrad, Bob lived with his parents in Markham and considers this to be his home address in Canada. He has been in his F-1 status for 62 months, and is considered a US resident alien for tax purposes. Bob visited his girlfriend in downtown Toronto for a week during the summer, living at her apartment there. Bob intends to return to Canada upon the expiration of his F-1 visa. Bob may register to vote by special ballot in the Markham—Unionville riding, using the departure date following his stay during the summer.
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I get to vote!

… at least in this federal election.

After Elections Canada’s letter requesting my intended date of return, I responded by postal mail declaring a future date that should accommodate my intended career development in the United States. Needless to say, that intended date was pretty far into the future. At the close of my letter, I stressed that the Canada Elections Act has no statutory time limit on the intention to return:

I also write to emphasize that I became a nonresident of Canada upon acquiring residence in the United States on ****** **, 2014. Therefore, I am within the five-year limit on actual time abroad recently reinstated by the Court of Appeal for Ontario, even if my intended return would be beyond five years, since the applicable statute imposes no temporal restriction on the intended date of return for an eligible elector “who… (c) intends to return to Canada to resume residence in the future.” Canada Elections Act, S.C. 2000, c. 9, § 222(1).

I look forward to receiving a special ballot from your office at the upcoming election.

This week, I received the special ballot voting kit, which includes a guide pamphlet, ballot paper, an inner envelope, an outer envelope, and a preaddressed envelope.

Voting kit for special ballot
Voting kit for special ballot

* As far as I am aware (and yes, I’ve checked), it is not illegal in Canada or Ontario to photograph this kit, provided that no vote has been marked. I haven’t yet decided for whom I will vote, so this photography serves simply as an illustration of what to expect for Canadian expats, rather than as evidence of my vote.

Hopefully this won’t be the last time I get to vote in Canada from abroad.

Are you a Canadian temporarily abroad?
Register to vote with Elections Canada!

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A letter from Elections Canada

We are writing to request information to update the International Register of Electors. This request is a result of a July 20, 2015, ruling by the Ontario Court of Appeal, which took effect immediately.

… To receive a special ballot at the upcoming election, you must provide:

– The month and year you plan to return to Canada to reside

The implementation of this ruling demonstrates the imperfect nature of restrictions on expat voting—not only does the law have an arbitrary 5-year bar on voting from abroad, but for all expatriates Elections Canada is demanding a crystal clear declaration of the date they will return to Canada.

I think it’s worth noting that the underlying text of the statute only requires that an eligible elector “intends to return to Canada to resume residence in the future.” Canada Elections Act, S.C. 2000, c. 9, § 222(1)(c).

The agency could likely have fulfilled the statutory requirement by requiring only a simple checkbox that I do, in fact, intend to return to Canada “at some time in the future.” But that’s not what they did.

Click for the full PDFClick here for the full PDF, including the reverse side.

See also my previous two posts on this subject: Let me vote, dammit and A little more about expat voting in Canadian elections.

 

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A little more about expat voting in Canadian elections

Democracy Thwarted

After blogging last week about being deprived of my right to vote as a Canadian citizen, I realized two things:

  1. I’m personally affected as far as the impending election is concerned because Elections Canada is now requiring international electors to declare an intended date of return—even those of us who have previously applied to be on the Register, and have not yet been abroad for over five years
  2. Wikipedia’s page on Elections in Canada lacked any mention of the expat situation, erroneously claiming (though it used to be true for 14 months) that “National voting is available to all Canadian citizens aged 18 or older.”

I rectified the second situation by revising those sentences and adding a section on expat voting to clarify the current state of affairs.

I believe my summary, which recalls the five-year limit’s origins in 1993, is the most compact summary of the whole picture, to date, in one place.

Of course, I humbly encourage others to contribute to Wikipedia and edit the article to continue improving its content, but I think the section I mentioned is worth quoting:

Canadian citizens abroad

Although Section Three of the Canadian Charter of Rights and Freedoms provides that “every citizen of Canada has the right to vote”,[9] in practice only those citizens 18 years of age or older, and who reside in Canada or have been abroad for fewer than five years, may vote.[10] Exemptions to the five-year limit exist for members of the Canadian Armed Forces, employees of the federal or a provincial government who are abroad, employees of certain international organizations, and their cohabitants.[10] The five-year limit was originally enacted as part of Bill C-114, An Act to Amend the Canada Elections Act, in 1993; these amendments extended the special ballot to certain prisoners, and Canadians “living or travelling” abroad.[11] In September 2005, Jean-Pierre Kingsley, then the Chief Electoral Officer of Canada for 15 years, explicitly recommended in his official report that Parliament remove the five-year limit by amendment, but no action was taken.[12][13]

In May 2014, a court decision from the Ontario Superior Court of Justice invalidated the five-year limit as an unconstitutional restriction on the right to vote, in violation of Section Three, leading to a period of fourteen months during which all Canadian expatriates could apply to be on the register of electors.[14] However, the decision was reversed 2-1 on appeal at the Court of Appeal for Ontario on July 20, 2015, in a judicial opinion citing Canada’s history of using a residence-based electoral district system and a justification based on social contract theory, which held that the five-year limit was a permissible limitation of the constitutional right to vote under Section One.[15][16] As of August 2015, Elections Canada has implemented changes to its registration process to comply with the latest court ruling, and will require expatriates already on the register to declare an intended date of return.[17]

Again, I really hope this is appealed to the Supreme Court of Canada. Unfortunately, with the federal election just having been called for October 2015, it is impossible for any ruling to take effect in time for the impending election. (A legislative solution is also possible, but a court ruling would be the most optimal outcome.)

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Let me vote, dammit

In Frank v. Canada (Attorney General), 2015 ONCA 536, the Court of Appeal for Ontario decided that Canadian expatriates could be denied the ability to vote after 5 years of residency abroad, in spite of the Charter clause guaranteeing citizens the right to vote, reversing an earlier court ruling that had vacated the temporal limit. Letting all citizens vote would be “unfair” to Canadians who live in Canada, apparently.

As a Canadian expat (US green card holder), I sincerely hope this case is overturned on appeal to the Supreme Court of Canada.

Like the respondents, who “attended university in the U.S. and remained there to pursue careers in their chosen professions”, my choice to be in the United States to advance my studies and career in the law is a matter of circumstance. Acquiring a green card did not signal the surrender of my citizenship and all its rights, responsibilities, and privileges.

It’s already annoying enough when the tax agencies of the two countries—CRA and IRS—use different definitions of residency for tax purposes… which differ from the governments’ definitions of residency for immigration purposes… which apparently differ from some U.S. states’ definitions of residency for driver’s licences…

… but now to convolute the meaning of a citizen’s right with a resident’s right?

I remain invested in the direction of the Canadian government and try to stay informed about Canadian politics. I still receive communications from multiple Canadian parties, am a supporter of two activist groups involved in IP and media law, and continue to engage in discourse with resident Canadians about the state of the nation.

As an individual with only one citizenship—Canadian—being disenfranchised at the end of five years from voting in Canadian federal elections would leave me with no democratic representation in any jurisdiction, since noncitizens in America are forbidden from participating in the U.S. electoral system even as a donor to any campaign. Even Canadian felons would have more political representation than I would have. This untenable situation would reasonably drive an expat to pursue foreign citizenship, if only to regain those rights and privileges that one would have expected Canadian citizenship to guarantee.[1]

The Charter doesn’t define the right to vote by residency, but by citizenship. Section 3 provides:

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 majority opinion contends that residency has been historically a factor in implementing the electoral system that enables citizens to exercise the right to vote, but the court erroneously conflates the implementation of a constitutional right with the acceptable boundaries on that right.

It embraces the vague notion of protecting the “social contract”, a principle in which individuals who make laws must also obey them, as a legitimate purpose to restrict the voting rights of expatriates. But really, expatriates remain bound by Canadian laws, particularly those affecting taxation, citizenship, and property…[2] Laws passed in Canada, far from having “little to no practical consequences” for my expat family as the majority opinion contends, affect us financially (at least in terms of loans and taxes), affect my parents’ property and retirement assets and income, and influence our choices later down the road about whether or not to return to Canada.

… and it’s not like every resident citizen is affected by every law anyways! Bear with me for a moment; consider this perspective: the scope of a law often excludes those people who supported it. A law limiting concealed carry handguns, for instance, would probably be passed by those people who themselves have no need or desire to engage in the actions that the law prohibits. Indeed, this ruling actually enables resident citizens to violate the social contract principle supposedly being protected: a hypothetical law imposing 50% taxes on foreign income earned by nonresident citizens, for example, could be passed by representatives of resident citizens living comfortably in Vancouver and Toronto unaffected, while disenfranchised citizens abroad would be the ones affected.

This case better make its way to the Supreme Court of Canada.

Footnotes

Footnotes
1 ↑ It’s worth noting that American expatriates retain the right to vote indefinitely while abroad, and even some citizens who have never even set foot on U.S. soil can nevertheless vote in several states. Hurrah to the Constitution?
2 ↑ Increasingly in today’s world, laws that apply to surveillance and foreign intelligence, too, come to mind.
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