Voting for the last time: Article 222 of the Canada Elections Act and the consequence of working abroad

For some, the 2015 federal election that will be held on October 19th is a long time coming. Partisan statements aside, this article discusses the intricacies of voter’s rights for non resident Canadian citizens.

If you’re living abroad and want to participate in Canada’s federal election this year, you will need to vote by mail. However, voter beware, you will only be able to do so if you’ve been living outside of Canada for under five years or if you conform to one of the few government-sanctioned criterion:


If you have little intention on returning to Canada anytime soon, and are not working as a Canadian employee (or affiliate) abroad, this may well be the last time you vote.

This is problematic for many Canadians abroad who wish to participate in their country’s democracy. But what is most problematic is the void of explanatory information justifying the eligibility criterion to the International Register of Electors, particularly when considering Section 3 of Canada’s constitution which explicitly indicates that: “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.”

To find information on the matter, a recent court case (Frank v. Canada (Attorney General), 2015 ONCA 536 (CanLII)) was consulted. During this court trial, Gillian Frank and Jamie Duong, both Canadian citizens working in the U.S., declared unconstitutional the provisions set forth in Article 222 of the Canada Elections Act, S. C. 2000, c. 9.


The appellant representing the Canadian government, in this case the Attorney General of Canada, justified the criterion according to five positions. The following is a comment on four of these five positions, from the perspective of a Canadian living abroad that is likely to see his last chance at voting in Canadian elections.

Appellant position #1 [Frank v. Canada (Attorney General), 2015 court case]:


Let’s first understand the social contract. Originating during the time of Enlightenment, most notably through Jean-Jacques Rousseau’s work Du contrat social ou Principes du droit politique (1762), the social contract generally promotes the idea that citizens of a country must forfeit some of their individual freedoms in order for the greater good to prevail. It also endorses, amongst many other ideas, the notion that individuals have a responsibility toward the fulfillment of a functional and thriving society.

So, Canadians have the responsibility to contribute to their society, but how do we calculate these contributions to growth, progress and success? Or what is even meant by growth, progress and success? In the neoliberal rhetoric of “money talks”, this is calculated by monetary values. For a long time, gross domestic product (GDP) was the leading indicator for national strength, but many international bodies have since recognized such an indicator as flawed and an inequitable barometer of success, opting for others such as the human development index (HDI), of which considers other variables such as life expectancy and education in addition to per capita income. How Canadians contribute to these indicators is not cut-and-dry, and many other factors need to be considered when deciding whether or not a Canadian abroad fulfills its duties and responsibilities toward the Canadian social contract. For instance, what about the thousands of aid workers implementing the Canadian values of peace and harmony within war torn landscapes? What about teachers who represent their educational background and honor it through meaningful dialogues between pupils of various ethnicities and cultures? What about Canadian journalists putting their life on the line to bring news stories to the world? Perhaps they are not working for Canadian agencies, and are thus not paying into the Canadian system. But they are representing Canada, and are unarguably part of its growth, progress and success on the international landscape. That should mean something to the so-called social contract.

A second point needs to be made about the social contract and the Attorney General’s fixation on the objective and subjective connection between Canada and Canadian citizens. We can no longer say that the global village is at our doorstep; it’s now in our house and sitting comfortably on the couch with a glass of whisky and a cigar. The idea of “connection” has changed since the Internet’s broad use and access, which leads to a belief that Mr. Peter MacKay has either not yet updated his operating system from Windows 95 or is still using Mosaic Netscape 0.9 with a dial-up connection. The ease in access of information is not some sort of obscure postmodern conversation, but one that is right in our face and integrated within our daily lives. Massey (1999) discussed the Internet as an instigator of ‘time-space compression’, where our conception of time and space has now been reduced to microscopic levels, interconnected by the vast web of digital connections. It is undeniable that Canadians abroad can be connected and informed about the debates, controversies and House of Commons decorum hullabaloos. Yet, they are assumed to be disconnected and uninterested in the far away land of icy-cold Canadian politics. After all, it’s no wonder that the Attoney General’s archaic rhetoric about connectedness is justified through notions dating from the Enlightenment.

On the last point concerning “(…) having a voice in making the laws and being obliged to obey them (…)”, if this was sincerely a priority then Canada would have adopted a Switzerland-like semi-direct democracy a long time ago. If you look at the polls, the outcome of bill C-31 could have been very different.

Appellant position #2 [Frank v. Canada (Attorney General), 2015 court case]:


Frankly, and although the social contract has a lot going for itself in history and in our present time, it might be something we need to update to our current way-of-life. Remember that Canada, along with many other countries from the Western Hemisphere, made an enormous push for globalization. Colonization’s Scramble for Africa and post-WW2 free trade treaties are clear examples of this. This so-called “(…) diminished connection (…)” claimed by the Attorney General is arguably the result of a centuries-old program of globalization, and it seems quite cowardly and hypocritical to punish those who have sought employment on the global job market.

A second issue with this position is in relation to the idea that “(…) few Canadian laws apply extra-territorially”. There is truth in this and that cannot be denied, but as Maclean’s National Leaders debate devoted ¼ of its time discussing issues of foreign policy and national security, none can argue that Canadian policy has no impact abroad. It may not be clear for those living in Canada, but it is for those who aren’t. Canada’s reputation is at stake here, and often it is those working and living in other countries that feel the repercussions of foreign policy in Canada. Voting for federal elections is not solely about domestic laws, and the Attorney General of Canada should step out of his cave and start noticing that out-of-country citizens are often flipping the bill (metaphorically) for Canada’s foreign policy.

Appellant position #3 [Frank v. Canada (Attorney General), 2015 court case]:


Anyone who knows a little bit about public policy and governance knows about spin-doctoring, or as Hood (2011) calls presentational strategies for blame avoidance. The emphasis here is on the Attorney General’s claim that “(…) non-residents choose to live outside Canada” [emphasis in original text], discharging the government of blame on domestic employment issues and the seemingly trivial issue of out-of-country voters rights. The issue of choice absolutely needs to be addressed here, as it is not as black or white as we would be led to believe. Teachers in Ontario, for instance, risk staying on waiting lists for years before landing a permanent (or even semi-permanent) contract. It is effectively a choice of whether or not you are willing to partake, but it is a known fact that this is a broken system, and for those who cannot afford to wait, leaving Canada to seek other opportunities is not a matter of choice.

It’s not quite clear if this was the Attorney General’s intention, but the statement where “Residence, like age, is a way of regulating the modality of voting and does not speak of ‘worthiness’” is quite undermining. People abroad can think, learn and know about what’s going on in the political playing field, and it seems quite unsuitable to compare out-of-country citizens that do not fit within the International Register of Electors criterion as minors. Here’s a good one: “DUI convictions, like age, is a way of regulating the modality of driving license acquisition and does not speak to ‘worthiness’”.

Appellant position #4 [Frank v. Canada (Attorney General), 2015 court case]:


The claim that “(…) non-residents can participate in the foreign polity” is clearly an ethnocentric assumption that all governments are as open as Canada in regards to public participation on political issues. It is true that The Universal Declaration of Human Rights opens the door for freedom of expression (Article 19) and assembly (Article 20), but that does not mean anything in repressive states.

The opinion piece laid out above is a considerable issue for those of us that live abroad, love their country and want to have their voice heard. It is not a question of “modality”, but a question of constitutional right and demanding that this right be upheld.