Six years ago Rick Mercer explained to Canadians some of the basics of our constitutional material, particularly with reference to the political executive. As highlighted in his commentary there are many misconceptions about the Canadian political system. The commentary offered by Mercer in this video deals with content of the 1867 constitution, however a recent news story featuring well-known actor Donald Sutherland addresses material from the 1982 constitutional material – namely the Canadian Charter of Rights and Freedoms.
For those unfamiliar with the story, Sutherland was commenting on a recent Ontario court ruling which upheld an election rule which says that citizens who have lived outside Canada for five years or more cannot vote in federal elections. The case does not directly involve Sutherland, but he is impacted by the decision because his permanent residence is in the United States.
Quick surveys of a couple of blogs and news website comments shows that opinion is divided on the issue of allowing non-residents to vote but why does the law make this restriction? And why did the court allow it considering that voting is a protected constitutional right for citizens?
Let’s start by looking at what is protected in the constitution. The Charter states in Section 3 that:
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.
This right is protected from government legislative override – the Notwithstanding clause – as outlined in Section 33. The Notwithstanding clause allows legislators to explicitly state that they know they are overriding a protected right and pass the law anyway. This act is valid for 5 years but can be renewed. Because Section 3 is not subject to the Notwithstanding clause this is not an option for government.
Another way that protecting rights and freedoms can be limited is Section 1 of the Charter.
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 democratic society.
This means that the rights in the Charter are limited and can in fact be infringed by laws passed by Parliament or provincial legislatures. This is the part of the Charter that was used to defend the limitations placed on non-residents.
If you think about it, there are a lot of limits placed on this right. Voting is restricted to those over the age of 18 years and must be done properly according to rules about how votes are cast. Running for office is also restricted by age and other rules including a minimum number of signatures on nomination papers, making a deposit, and appointing an agent and auditor. If citizens cannot or do not meet these requirements they cannot vote or run for office.
These limits are generally accepted because they seem reasonable. It makes sense that 5 year olds can’t vote. Choosing the minimum age of 18 is arbitrary (and it used to be 21), but it makes sense that a general rule that sets a minimum exists. We don’t want fraudulent votes so we accept that votes have to be cast in a specific way.
There is a certain logic to the restriction on voting and that is why the court allowed it. Voters cast ballots for Members of Parliament in federal elections. It becomes a problem for non-residents to vote because they don’t live in a electoral district where they can vote for an MP to represent them. The judge also outlined the idea of the social contract which is a theory that describes how the government gets legitimacy to pass laws that apply to those who live here.
The reality is that there are limits placed on all of the rights and freedoms guaranteed in the Charter and they are perfectly legal and in line with constitution. Deciding what those limits are is a policy decision made by elected politicians and the courts serve to make sure that the limits can be justified. Canadians can influence those limits by voting and writing the MPs to let them know what their opinions are.
You can read the judgement for yourself on the Court of Appeal for Ontario’s website. You can also check out the Charter.