Over the course of the weekend, I’ve been giving a great deal of thought to the Supreme Court of Canada’s decision in Frank v. Canada (Attorney General), 2019 SCC 1 – the decision about expat voting rights – and I still can’t bring myself to conclude that they the majority got it right. I’ve read over the decision and found myself greatly annoyed by the fact that majority simply shrugged off the very real issue of constituencies and local elections, and that in his concurring reasons, Justice Rowe mentioned them but shrugged them off. And while people will criticise the reasoning and analysis employed by the dissent from Justices Coté and Brown, they at least did pay particular and necessary attention to the issue of constituencies as it relates to our system – and the rationale for the five-year limit (in that it is the constitutional maximum length of a single parliament). And I can’t let this go, because five of seven justices of the Supreme Court failed to properly understand the importance of constituency-based democracy (and I think the Attorney General’s office also bears a particular amount of responsibility for not making the case adequately either).
To reiterate – we vote for local representatives. We don’t vote for parties, or party leaders, no matter what we may have in mind when we go into the ballot box – we mark the X for the local candidate, end of story. For an expat, it’s not the connection to Canada that should be at issue – it’s the connection to the riding, because that’s how we allocate our votes. The dissenting judges got that, but the majority and virtually all of the commentary I’ve seen on the matter ignored it, despite it being the first principle of our electoral system. The Attorney General focused on the “social contract,” which the majority decision hewed to, and there was a lot of talk about feelings and “progressive enfranchisement,” but feelings are not how we allocate votes in this country. Ridings are, and as warm and fuzzy as you feel about Canada, it’s the riding that ultimately matters. I feel like we’re rewarding civic illiteracy on a grand scale with this decision.
To that end, here’s Leonid Sirota offering his analysis of the decision, and University of Ottawa law professor Mike Pal’s thoughts in this thread. And here’s Emmett Macfarlane to pick apart the decision further (though we will disagree on the outcome).
https://twitter.com/EmmMacfarlane/status/1083740974008815617
https://twitter.com/EmmMacfarlane/status/1083743192225177601
https://twitter.com/EmmMacfarlane/status/1083744829278871552
https://twitter.com/EmmMacfarlane/status/1083745335044755456
https://twitter.com/EmmMacfarlane/status/1083747918736023552