There has been a case of significance as it pertains to the electoral rights of Canadian non-resident citizens making its way through the courts since 2011. On January 11, 2019, the Supreme Court of Canada released its decision in Frank v. Canada striking down the 1993 provisions of the Canada Elections Act that denied the right to vote in federal elections to Canadian citizens who resided abroad for five consecutive years or more. The 5-2 decision found that the limit/abrogation of voting rights of long-term non-resident citizens breaches those citizens’ rights under s.3 of the Charter of Rights and Freedoms, and that the limitation of those rights could not be justified as minimally impairing under s. 1 of the Charter. The result of the decision is that this class of Canadian citizens is no longer disenfranchised and does not have to show an imminent intent to return to Canada in order to exercise the fundamental political and citizenship right to vote.
Interestingly, and perhaps in contemplation of this anticipated Court decision, the current federal government amended the Canada Elections Act on December 13, 2018. Those amendments, first, removed the limitation on non-resident voting, and, secondly, answered the question of venue of vote recording. Section 3 of the Act now provides that “Every person who is a Canadian citizen and who on polling day is 18 years of age or older is qualified as a voter.” The effect of the amendment is that there is no longer a “residency requirement” to vote in a Canadian election. In addition, the new section 8(2.1) provides that “The place of ordinary residence of a person who resides outside Canada is their last place or ordinary residence in Canada,” which answers the question of where the non-resident citizen’s vote is counted. New Section 18(1.2) reads that “The Chief Electoral Officer may establish programs to disseminate information outside Canada concerning how to vote under Part 11.” The expectation under the amended provisions is that citizens outside of Canada, under Part 11 of the Act, may request the Chief Electoral Officer to provide a ballot for the constituency where the voter last resided for recording.
Please note that the court decision and amendments set out above only apply to federal elections. The case does not suppose to decide the status of voting in provincial or municipal elections, which some Justices of the Court noted may have different considerations regarding voter restrictions. While one can expect that this Court decision may have some impact on the local and provincial electoral commissions, until such time as there is a Court decision or legislative amendment specifically regarding those elections, non-residents should presume that they remain disqualified from voting in elections at those levels.
The information contained in this circular is not intended to be legal, financial, tax, investment, or accounting advice and should not be construed as such. The information is believed to be correct as of the date of its publication, but readers are cautioned to obtain specific advice from their legal, investment, tax, and/or accounting advisors before proceeding in reliance upon this information.