NEWS ‐ Constitutional challenge succeeded!
Two Canadians, Gillian Frank and Jamie Duong, went to court to restore their constitutional rights.
On May 4, 2014, the Ontario Superior Court ruled that the law banning expatriates from voting by mail was in violation of the Charter of Rights and Freedoms, and was of no effect.
Starting with the June 30 federal by-elections, all Canadian citizens, around the world, will be able to vote, by mail or in person, in the riding of their last residence in Canada.
The Government has announced it will appeal the decision, but in the meantime the law remains repealed. You can register to vote here.
See the links on the top right for more information.
New Questions and Answers
Can I vote in the June 30 by-elections?
Yes, if your last Canadian residence was in Scarborough-Agincourt, Trinity-Spadina, Fort McMurray-Athabasca, or Macleod. You must register to vote by June 23.
How do I vote if I don't live in Canada?
You must download a form from Elections Canada, fill it in, and mail or fax it back, along with a copy of your passport, birth certificate, or citizenship card. You must send it in again if you change addresses before the next federal election. At the next election, Elections Canada will send you a ballot. The ballot is blank - you are expected to look up the name of the candidate in your riding yourself. You write it in and mail it back.
Does the court ruling apply to provincial elections?
This is only my amateur opinion, but the lawsuit only challenged the constitutionality of federal elections law. The Charter also guarantees the right in provincial elections, though, so it's possible a similar suit could strike down provincial laws.
If I vote in Canada, won't that make me liable to pay Canadian income tax?
No. You pay Canadian income tax on your foreign income only if you are a resident of Canada. The point of the ruling was that non-residents now have the right to vote.
Of course, you must always pay Canadian tax on your Canadian income, such as RRSP withdrawals, or rental or business income from Canada, even if you live abroad. Voting doesn't change that either way. Nor are you eligible for most Canadian public services, like medicare or welfare.
The Q&A below describes the situation before the court ruling.
Archived Questions and Answers
Aren't all Canadian
adults allowed to vote?
I thought so too.
Who isn't allowed to
Canadian citizens who have lived outside the country for more than five
Even members of the
No. Those serving in the Canadian Forces or employed by a federal or
provincial government, or the UN or other international bodies, are exempt from the five-year limit.
How is this enforced?
If a voter tries to download a ballot application from Elections Canada's web site, they will be asked their country of residence. If it is not Canada, they will be asked for the length of their residence abroad, and refused if it is more than five years. If the voter phones Elections Canada, they will be told the same thing.
Do you have to actually live in Canada? Wasn't the rule was you had to visit Canada every
This was, in fact, Elections Canada's policy during the 2006 and prior
elections; voters could register if they'd at least visited Canada
within the past five years. Now, the agency is saying that
interpretation of the law was incorrect.
How can the
interpretations of the same statute be so radically different?
Beats me. I'm still trying to get an answer for that one from
Why should you be allowed
to vote if you don't live in Canada?
Because the Canadian Charter of Rights and Freedoms says so. Section 3:
3. Every citizen of Canada has the right to vote in
an election of members of the House of Commons or of a legislative
assembly and to be qualified for membership therein.
Is that really fair?
If non-residents don't pay taxes, and don't live in Canada,
why do they even deserve the right to vote?
Taxes are really a separate issue. There are low-income Canadian
residents who pay little or no taxes; no one would consider taking away
their right to vote.
Besides, there is nothing preventing Parliament
from passing laws imposing taxes on citizens living abroad. As long as
they hold Canadian citizenship, expatriates are still subject to
Canadian law. Thus, it is undemocratic to deny them their
constitutional right to vote, even if current law does not require them
to pay taxes.
Parliament could theoretically even impose a special tax payable only
by expatriates, and they wouldn't get to vote on it.
But why would an expatriate even care who wins a Canadian
You're not living here, what goes on here doesn't affect you.
But it does. Expatriates are still bound by the
Canada. Most have property or investments in Canada, most
family in Canada. Many have worked and lived in Canada long
enough that they may eventually be eligible for public or private
pensions. Many are considering the prospect of returning,
and the types of opportunities available for them in Canada - heavily
influenced by government policies - are a major factor in that
More fundamentally, the act of voting is an act of expressing a belief in what type of society one wants Canada to be.
Those who have "left in the body but remained there
in spirit" by retaining their citizenship, and who still care enough about Canada to vote, should be permitted to do so.
If Canada is good enough to vote in, why isn't it good enough
to live in?
It is not a question of "good" or "bad". It is a question of
where each individual feels their own life goals and aspirations can
best be met. Canadians live abroad for a variety of reasons:
Leaving Canada, leaving one's family and friends behind, is often the
hardest decision these individuals have had to make. It
doesn't mean that they don't love Canada, or have abandoned it; if they
had, they would no longer care about the right to vote.
- Many computer and engineering professionals are working in
the industry's leading companies, of which there are more in the United States
and Europe than in Canada;
- Salaries in a number of professions requiring very
specialized skills and education are significantly lower in Canada than
in some other countries;
- Canadians may have joined humanitarian efforts, often for
the long-term, in developing countries;
- In the scientific and medical fields, only a few of the world's
leading research labs and institutes are found in Canada;
- In the academic world, good tenure-track academic positions
have until recently been much easier to find abroad than in Canada.
Canadian universities are overall as good as those of any
other country, but it must be admitted that most of the very best, most highly specialized opportunities are found elsewhere.
- Others have family ties in other countries, or may have
married someone living abroad.
If someone goes abroad in search of a higher salary, then screw 'em, I say! Such a person is a traitor, not a voter.
The Charter of Rights also grants citizens the right to leave the
country. To attempt
to "punish" Canadians who have exercised that right by taking away another is fundamentally undemocratic.
As an aside, even someone convicted of high
treason still has the right to vote, as do all prisoners.
Why don't you just come back to Canada instead of whining about not
I might. But that's not the point.
Voters must choose their elected officials. Elected officials
should not choose their voters. It would otherwise be too
easy for governments to help ensure their own re-election by ensuring
that those less likely to vote for them are eligible.
If there is no right to vote, all sorts
of arbitrary conditions could be imposed.
Isn't it tyranny if those outside Canada, not paying Canadian taxes,
not receiving Canadian government programs,
impose their view on those who do?
No. An expatriate is still a Canadian, by right of birth or
naturalization. It is no more "tyranny" for them to vote than
for any other individual.
The point is moot anyway; there were only about 10,000 overseas ballots
cast in 2006 (when the rules were interpreted more lightly), out of
nearly 15 million total cast. That's not anywhere near enough
to change election outcomes in even a single riding.
And again, there is nothing preventing Parliament from taxing
non-resident citizens. In some respects it already does - any
income earned from RRSP withdrawals or other investments in Canada by a
non-resident is taxable, as are sales taxes on visits to Canada.
I'm tired of immigrants
coming to this country, staying just long enough to get citizenship,
and going back to their home countries. We just had to spend $94
million to evacuate "Canadians of convenience" living in Lebanon! And
now they want to vote too?
Once again, that's a separate issue. We are talking about the
right to vote, not the privilege of receiving emergency assistance or
Furthermore, a majority of Canadian citizens living abroad
were born in
Canada. Almost half of expatriate Canadians are in the United States,
not a major source of immigrants to Canada. Secondly, voting is not the
same thing as spending money on an evacuation. Voting is a right;
evacuation is a privilege.
Nothing stops the government of Canada from limiting or eliminating
services for citizens living abroad, or charging them fees for it. That
is within Parliament's powers under the Constitution. But it is not
within Parliament's power deny the right to vote.
Expatriates are not permitted to use the Canadian health care
system, send their children to Canadian public schools, or apply for
unemployment or welfare assistance from Canada. Nor should
voting is different.
I still don't think Canada should allow dual citizenship.
That too is really a separate issue. In any case,
even Canadian citizens who hold no other citizenship
are not permitted to vote in Canada when living abroad.
they are not permitted to vote in the other country either.
Do other countries allow non-residents to vote?
The United States has an extensive government program
at registering non-residents to vote and making sure they have timely
access to forms and ballots. Both major U.S. parties openly campaign
Abroad and Republicans
have a network of chapters across Canada to register and canvass the
citizens living there. In 2004, John Kerry's sister openly
campaigned for him in Canada.
During the 2007 presidential elections in France,
the three major candidates
opened campaign offices in Montréal, aimed at that city's
One particularly notable example is Iraq.
Not only were Iraqi citizens in Canada allowed to vote in
2005 elections, but polling stations for Iraqi citizens were actually set
up in Canadian cities, with special permission from Elections
Many of these emigrés had not set foot in Iraq in
Yet Canada did not accord that right to its own citizens.
Similarly, Finland is placing polling
stations in seven Canadian cities on April 6-9, 2011, for
There are countries with emigrant populations much larger than Canada's
that allow overseas citizens to vote without restrictions, such as
Italy, Poland, and Mexico. So do Belgium, the Netherlands,
Iceland, Norway, Denmark, Sweden, Switzerland, Portugal, Estonia,
Japan, and New Zealand. The complete
list of countries has 97 names in it.
France, Estonia, and the Netherlands have gone so far as
to set up
voting over the Internet, to make it as easy as
France, Italy, and Portugal are
among the 11 countries that go so far as to reserve
seats in their parliaments
for non-residents (the others are Algeria, Angola, Cape Verde,
Colombia, Croatia, Ecuador, Mozambique, and Panama).
Is there anyone else not
permitted to vote?
At the time of the passage of the Charter of Rights in 1982, three other groups
were not permitted to vote. All have been given that right by the
Supreme Court of Canada:
This gives rise to the strange situation where the notorious serial
murderer Paul Bernardo is allowed to vote, while a Canadian-born
trying to find a cure for cancer at Harvard is not.
- The mentally disabled;
- Federally-appointed judges;
serving prison sentences.
So why hasn't the Supreme
Court allowed non-residents to vote?
To our knowledge, no senior court has been asked to rule on this issue.
Only in May 2012 was a formal constitutional challenge initiated to the law. See the news articles above.
Will this succeed?
I certainly hope so. It's not a fast process, however; it took over ten years of litigation before
prisoners won the right to vote. The legal case is strong enough that it may yet happen.
What is the exact text of
the law in question?
It is section 222 of the Canada
Elections Act of 2000:
(1) The Chief Electoral Officer shall maintain a
register of electors who are temporarily resident outside Canada in
which is entered the name, date of birth, civic and mailing addresses,
sex and electoral district of each elector who has filed an application
for registration and special ballot and who
(2) Paragraph (1)(b) does not apply to an elector who is
(a) at any time before making the application, resided in Canada;
(b) has been residing outside Canada for less than five consecutive
years immediately before making the application; and
(c) intends to return to Canada to resume residence in the future.
(a) employed outside Canada in the federal public administration or the
public service of a province;
(b) employed outside Canada by an international organization of which
Canada is a member and to which Canada contributes;
(c) a person who lives with an elector referred to in paragraph (a) or
(d) a person who lives with a member of the Canadian Forces or with a
person referred to in paragraph 191(d).
Does the law actually prohibit expats from voting, or only from voting by mail? Couldn't they
physically visit Canada and show up at a polling station?
Elections Canada actually has told at least one person that they can vote in person at a polling station,
provided they provide a proof of their address there more than five years ago. See the original French letter
and English annotated translation here.
Nonetheless, this raises almost as many questions as answers. Section 143 of the Elections Act requires either a single, Canadian government-issued piece of photo ID with name and address, or any two pieces of ID "authorized by the Chief Electoral Officer" that establish name and address.
Expatriates have a Canadian passport, but that doesn't provide proof of address. They may have had provincial drivers' licenses or health cards with their Canadian address, but these will have expired. Would those be accepted? Would poll workers across the country desperately phone the Chief Electoral Officer in Ottawa to verify this or that card?
The alternative is to have a Canadian resident vouch for you. The person vouching, however, can't just be a resident of Canada, not even just the riding in question - they have to be on the voters' list at the same polling station.
These are fairly strict requirements, and even for Canadian residents they have lowered voter turnout. You can see the drop in voter turnout in 2008, the first year this provision took effect.
Did the government use the "notwithstanding clause" to
3 of the Charter?
No. It can't do that; section 3 is not subject to the
Then doesn't that mean the Charter basically gives even young
children the right to vote?
The courts have ruled that out based on section 1 of the Charter.
What does section 1 say?
1. The Canadian
Charter of Rights and Freedoms guarantees the
rights and freedoms set out in it subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a free and
What exactly does "reasonable" mean?
The Supreme Court of Canada uses a definition often called the "Oakes
test", made in the 1986 R.
vs Oakes case. In order to use
section 1, the government must prove:
So don't you think the residency requirement for voting passes the
- Parliament's objective in limiting a Charter right must
"relate to societal
concerns which are pressing and substantial" in a
free and democratic society.
- The means chosen to limit the right must be reasonable and
- The measures must be not be arbitrary,
and must be "rationally
connected" to the objective;
- The means should impair the right as little as possible;
- The limit must be proportional to the objective.
Here you have only my humble opinion, and I am not a lawyer.
Still, I don't think the Oakes test can be passed here.
The only remotely plausible argument for the first requirement is that
non-residents are less affected by the actions of Parliament than a
resident is, and therefore should not have the right to vote.
As discussed above, this fails in the fact that non-residents
are still subject to Canadian law, and many have family, friendship,
financial, business, and other ties to Canada, and always have the
right to return there.
Even if you conceded point 1, there is just no way part 2 of the test
can be passed. The measure chosen was arbitrary.
Not only is the five-year limit basically plucked out of a
hat, but it has not even been consistently applied. In 2006
visiting was the sole requirement; suddenly in 2008 it changed to
residence. This strikes back into the territory of the first
part; ballots have been cast from overseas for many years, and there
was little or no public outcry in Canada about it. During
that time, there is no evidence that overseas voters actually changed
the outcome of an election, even in a single riding.
The law also requires that even those living abroad less than five
years "intend" to return to Canada. In real life, most people can't
possibly spell out their life plans well in advance just because Elections
Canada wants them to. This requirement can't fail to qualify as "arbitrary".
Nor do the means impair the right as little as possible.
There are all sorts of halfway measures Parliament could have
Just who the heck are you anyway, bub?
- Require non-residents to have visited Canada
in the past five years. That would still pretty much rule out
so-called "Canadians of convenience". Certainly the sky
didn't fall when this was official policy.
- Require some form of ties to Canada; investments, property,
bank accounts, family members.
- Charge a "poll tax" payable only by non-residents -
distasteful, but not as bad as eliminating the vote entirely.
- Limit the vote only if the non-resident has actually taken
up citizenship, or permanent-resident status, in the other country.
- Require the voter to request an extension of their right to
vote every year, as Australia does after the first six years of
- Have a longer time limit than five years. The UK
has a 15-year limit; Germany's is 25 years.
- Allow at least full-time students to vote, as Malaysia
does. Doctoral programs are seldom finished in five years.
I'm a 36-year-old native-born Canadian living abroad for more than five
years. That's all that really matters, eh? You can email me
Pourquoi ce site n'est-il pas traduit en
Nouveau On en a! Voir ici.
What can I do to help?
I very much fear that nothing short of a court challenge will convince Elections Canada to
change this policy. Fortunately, there is one underway; you can find out how to help at their site. You can also write to the Canadian Civil Liberties
Association or your MP. Write to your local newspaper
back in Canada. Blog about it. Tweet about it. Tell your friends and family in Canada and abroad. If nothing else, join the Facebook group.