Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
Bill C-50, An Act to amend the Canada Elections Act (short title: Citizen Voting Act) was introduced and received first reading in the House of Commons on 10 December 2014.1
The bill modifies the conditions that Canadians living abroad must meet in order to vote in a federal election. It also provides mechanisms to help Elections Canada remove the names of non-citizens from the National Register of Electors. It does so by:
Voting by non-resident citizens of Canada first occurred when the vote was extended to soldiers fighting abroad in the First World War.2 For most of the 20th century, only certain types of non-resident citizens, such as armed forces personnel and public service staff posted abroad, were permitted to vote in federal elections.
Today, the Canada Elections Act3 (CEA) governs federal elections and by-elections in Canada, and it was amended in 1993 to enable all Canadian citizens who reside outside Canada to vote in federal elections, provided that they have been absent from Canada for less than five years and plan to return to Canada (certain electors, such as those serving abroad in the Canadian Forces or those working at embassies abroad, are exempt from the five-year rule). Section 11 of the CEA provides that the following classes of citizens are eligible to vote by mail pursuant to a procedure set out in Part 11 of the Act:
In a September 2005 report following the 38th general election, the CEO recommended that the limitation contained in section 11(d) of the CEA, prohibiting voting by persons who have been absent from Canada for five consecutive years or more and who intend to return to Canada, be removed. He noted:
The absence of a mechanism to allow those who have been absent from Canada for five consecutive years or more to vote effectively deprives this latter group of individuals of their right to vote, a right protected by the Canadian Charter of Rights and Freedoms.4
He added:
The Special Voting Rules found in Part 11 of the Act should consequently be adjusted to allow individuals who have been absent for five years or more and who intend to resume residence in Canada to apply for registration or to remain listed in the register of electors absent from Canada, which is maintained by the Chief Electoral Officer.5
The following year, in 2006, the House of Commons Standing Committee on Procedure and House Affairs conducted a study assessing the CEA and possible amendments, using the CEO’s September 2005 report as a starting point.6 The committee agreed with the CEA’s recommendation that the five-year period should be eliminated, and went further:
The majority of the Committee agrees that the five-year limitation period is arbitrary and should be removed. It would, however, go further, and propose that all Canadian citizens who are absent from Canada should be able to vote in accordance with Part 11 of the Canada Elections Act. The requirement that there be an intention to return to Canada should be dropped.7
In its response to the committee’s report, the Government of Canada suggested that the committee conduct a review of special voting rules to “explore how electors may best be able to exercise their democratic rights.”8 It further suggested that:
the Committee’s recommendation that the restrictions on voting under the special voting rules by electors absent from the country for more than five years (recommendation 1.16) would best be considered in the context of this comprehensive review of the special voting rules to be undertaken by the Committee rather than be implemented at this time.9
In his statutory report following the 41st general election which took place in May 2011, the CEO explained changes to the manner of calculating the residency requirement for Canadians living abroad, indicating that a visit to Canada would not be considered a resumption of residence in Canada and would not interrupt the five year period:
Up to and including the 2006 general election, anyone who had returned to Canada, even for a brief visit, was deemed to have “resided” in the country and the five-year clock was reset, allowing them to vote by special ballot.
Following the 2006 general election, in the course of reviewing information material for these international electors, Elections Canada changed the information provided to more closely respect the text of the legislation by indicating that the five-year period begins from the date the elector leaves Canada to live abroad and remains in effect until the date the elector returns to Canada to reside. A visit to Canada cannot be considered a resumption of residence in Canada and does not interrupt the five-year period.10
In a judgment rendered on 2 May 2014 in Frank et al. v. Attorney General of Canada, Justice Michael Penny of the Ontario Superior Court held that the provisions of the CEA preventing Canadian citizens absent from Canada for more than five years from voting violated those citizens’ democratic right to vote guaranteed by section 3 of the Canadian Charter of Rights and Freedoms.11 Section 3 of the Charter states: “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.”12
Justice Penny further held that the violation was not saved by section 1 of the Charter, in that the limits prescribed by the CEA on Canadian citizens absent from Canada for more than five years were not “demonstrably justified in a free and democratic society.”13
As a result, Justice Penny declared that sections 11(d), 222(1)(b), 222(1)(c), 223(1)(f), 226(f), and the word “temporarily” found in sections 220, 222(1) and 223(1)(e) of the CEA had no force or effect.14 The decision took effect immediately.
In response to the ruling, the CEO indicated that Elections Canada would no longer apply the invalidated provisions, and that following the court decision:
Canadian citizens aged 18 or older who reside abroad may apply to be added to the International Register of Electors and to vote by mail-in special ballot in federal general elections, by-elections and referendums, provided they have at some point resided in Canada.15
The Attorney General of Canada has appealed the decision in Frank, though the appeal has yet to be decided at the time of drafting of this Legislative Summary. In June 2014, Court of Appeal Justice Robert Sharpe rejected a motion brought by the Attorney General of Canada for a stay pending the appeal of the judgment.16 A stay would have suspended the trial judge’s declaration of invalidity pending the appeal result.
The backgrounder on Bill C-50 issued by the Government of Canada when the bill was tabled suggested that the Ontario Superior Court decision in Frank was part of the motivation for drafting the bill. The backgrounder states the following:
On May 2, 2014, the Ontario Superior Court (Frank et al. v. Attorney General of Canada) struck down the law preventing citizens from voting if they have been out of the country more than five consecutive years or have no intention of returning. Estimates show that this could lead to 1.4 million new eligible voters and an outdated system to administer their votes.17
Note that Bill C-50 does not amend the provisions invalidated in Frank.18
Bill C-23, An Act to amend the Canada Elections Act and other Acts and to make consequential amendments to certain Acts (short title: Fair Elections Act), received Royal Assent in June 2014 (and almost all of its provisions are now in force).19 Bill C-23 introduced substantial modifications to the CEA.20
Among the modifications introduced by Bill C-23 were changes to the provisions in the CEA concerning voter identification. Bill C-23 amended the CEA to eliminate the ability of electors to prove their identity through vouching. Instead, electors may now swear a written oath of their residence provided that their residence is attested to on oath by another elector.21 The written oath must include statements affirming that:
A similar attestation approach is found in Bill C-50 to establish the last Canadian address for electors applying for a special ballot either because they live outside Canada or because they will not vote at the polls on election day.
Clause 2 of Bill C-50 adds new section 46.01 to the CEA. This new section enables the Minister of Citizenship and Immigration, at the request of the CEO, to provide the CEO with certain information contained in databases maintained by the Department of Citizenship and Immigration relating to permanent residents and foreign nationals in order to assist the CEO in updating the Register of Electors to delete the names of persons who are not electors.
According to its news release, the Government of Canada estimates that there may be as many as 40,000 non-citizens in the National Register of Electors.22 The CEO addressed media stories about non-citizens being included in the National Register of Electors in his report on the 39th General Election of 23 January 2006. The report stated the following:
Before being registered in the National Register of Electors or on a list of electors, a person must first provide adequate proof of identity and attest to Canadian citizenship. The only exceptions occur when names are added to the Register through updates from a provincial or territorial list of electors. In these cases, it is expected that the source agency has verified the elector’s status before adding the name to its own lists.
During the election, reports appeared in some newspapers about non-citizens who had incorrectly been registered to vote. These reports included sufficient detail for Elections Canada to follow up on four cases. We generally found the electors in question to have been originally registered to vote through a door-to-door enumeration. They were included in the Register either through provincial electoral lists used for updates or from the last federal enumeration in 1997. Whenever non-citizens were discovered, they were removed from the lists. Further investigation of the Register revealed that 511 non-citizens had been included on preliminary voters lists through an administrative error, despite the fact that they had confirmed with Elections Canada that they were not Canadian citizens. Their records were removed from the revised lists of electors, and Elections Canada sent a notification to each of these individuals.
New electors are added to the Register from Citizenship and Immigration Canada files only after citizenship is granted and consent is provided. They may also be identified from driver’s licence files or income tax files, but we write to those potential electors asking them to attest to Canadian citizenship before adding them to the Register. During the election, and when registering on polling day, electors must show identification and sign an oath confirming they are Canadian citizens. In addition, the prescribed form clearly states that it is an offence to provide false information. There are large signs posted in all voting locations that clearly state that only Canadian citizens at least 18 years of age are eligible to vote.23
Clause 4 adds new section 143(2.11) to the CEA, which specifies that, to prove an elector’s identity and address, the CEO may authorize only pieces of identification that have been issued by:
Clause 5 replaces new section 164.1 of the CEA enacted by the Fair Elections Act. Under section 164.1, the CEO must engage an auditor to perform an audit and report on whether deputy returning officers, poll clerks and registration officers have properly exercised their powers and duties under the voter identification provisions of the CEA. The changes to this section specify that the auditor must also report on election workers’ compliance with special ballot voting procedures and requirements (which are amended by Bill C-50).
Part 11 of the CEA sets out special voting rules for electors in the Canadian Forces (Division 2), electors living abroad (Division 3), electors otherwise voting by special ballot (Division 4) and incarcerated electors (Division 5). Bill C-50 makes substantive amendments to Divisions 3 and 4, and these are discussed below.
Canadian electors residing abroad will now be included in the National Register of Electors. Clause 6(1) of Bill C-50, in conjunction with clause 8, eliminates the register of electors who temporarily reside outside Canada by deleting the definition of “register” found in section 220 of the CEA. Consequently, clause 7 deletes section 221 of the CEA regarding how voters can be included in the now-eliminated register of electors who temporarily reside outside Canada.
Clause 6(2) adds two new definitions to Division 3 of Part 11 of the CEA, for the terms “last place of ordinary residence” and “other elector.” These terms are discussed below.
Clause 8 rephrases now-deleted section 221 of the CEA and moves it to the beginning of section 222(1). Under the revised provision, in order to be eligible to vote, electors temporarily resident outside Canada must apply for registration and special ballot after the writs in an election are issued (this requirement did not exist in now deleted section 221) and before 6 p.m. on the sixth day before polling (the same requirement as that found in existing section 221).
By amending section 223 of the CEA, clause 9 adds new requirements that must be included in an application for registration and special ballot. While existing section 223(1)(a) specifies that an elector would have to include satisfactory proof of his or her identity, amended section 223(1)(a) requires the elector to provide his or her name and last place of ordinary residence before leaving Canada, as well as proof of citizenship (under new section 223(1)(a.1)).
Currently, section 223(1)(e) establishes that electors living abroad can, as a means of determining which riding they would vote in, provide proof of:
Sections 223(1)(a) and 223(1)(e), as amended by Bill C-50, set out that electors can register only by using their last place of ordinary residence in Canada and must provide proof of their residence in that place. In other words, pursuant to Bill C-50, Canadians living abroad may only vote in the riding where they last resided in Canada.
New section 223(1.1) of the CEA specifies what types of identification must be provided to prove an elector’s identity and last place of residence in Canada. Two options are available to the elector:
These new requirements regarding attestation mirror the language found in section 143(3) (alternative proof of residence) added to the CEA by the Fair Elections Act.
Clause 10 replaces sections 224 and 225 of the CEA and adds section 225.1. New section 224 specifies that the CEO will approve applications for registration and special ballot only if, in accordance with section 222(1) as amended, the elector has submitted his or her application on time and:
As well, the application for registration and special ballot must contain the identification information set out in section 223, as amended by Bill C-50.
Note that the requirements that the elector has resided for less than five consecutive years outside Canada and that the elector intends to resume residence in Canada were declared to be of no force or effect by the Ontario Superior Court in Frank (discussed in section 1.1.4 of this Legislative Summary), though this decision is currently being appealed by the Government of Canada. New section 225 specifies that the CEO shall inform the returning officer of any elector who is to vote by special ballot in the returning officer’s electoral district. The returning officer shall indicate on the list of electors for the electoral district that the elector received a special ballot.
New section 225.1 specifies that once an elector’s application for registration and special ballot has been accepted by the CEO, the elector may only vote under Division 3 of Part 11 of the CEA.
Clause 11 modifies section 226 to reflect the elimination of the register of electors who temporarily reside outside Canada and the fact that electors living abroad will now be included in the National Register of Electors.
Clause 12 contains a consequential amendment to section 227 (regarding the sending of a special ballot and envelope to an elector) to remove the reference to the register of electors who temporarily reside outside Canada which was eliminated by clauses 6 and 8 of the bill, and to specify that the CEO shall send a special ballot to those electors living abroad whose application for special ballot has been approved.
Any elector who cannot or does not wish to vote at a polling station during an election may vote by special ballot. Division 4 of Part 11 of the CEA sets out the special ballot voting procedures for electors residing in Canada. The amendments made to this division are designed to reflect changes to the identification and proof of residence requirements brought about in the Fair Elections Act.
Clause 13 amends section 231 of the CEA by adding a definition for “other elector,” being another person who is qualified to vote in the polling division in which an elector’s place of ordinary residence is situated (for the purposes of making an attestation as to an elector’s ordinary place of residence).
Clause 14 amends section 233 of the CEA, adding a number of requirements to prove an elector’s identity and residence. These amendments mirror those made by clause 9 to section 223 of the CEA (for electors residing abroad).
Clause 15 adds new section 233.1 to the CEA, specifying that the returning officer or special voting rules administrator shall approve an application for registration and special ballot only if the elector has submitted the application on time and the application contains the identification and proof of residence information set out in section 233 of the CEA.
Clause 16 adds new section 281(g.1) to the CEA, specifying that no person shall vote or attempt to vote at an election under Division 3 or 4 of Part 11 knowing that he or she is not qualified as an elector.
Clause 17 modifies section 491(2) of the CEA as enacted by the Fair Elections Act (offences requiring intent – summary conviction) by adding the following new offences:
Clause 18 replaces section 549(2) of the CEA with section 549(1.1), which specifies that any oath referred to in section 549(1), other than a statutory declaration taken in a foreign country, must be administered by any person referred to in section 52 of the Canada Evidence Act.24 Under new section 549(2), all oaths or affidavits taken under the CEA in Canada are to be administered free of charge. The current section 549(2) states that all oaths or affidavits taken under the CEA are to be administered free of charge.
Clause 19 is a transitional provision that ensures that all of the information contained in the register of electors who temporarily reside outside Canada will be deemed to be contained in the Register of Electors upon the coming into force of Bill C-50, and that the CEO must update the Register of Electors accordingly.
Clause 20 states that Bill C-50 shall come into force 60 days after it receives Royal Assent.
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
(2.7 MB, 30 pages),” A History of the Vote in Canada, Ottawa, 2007, p. 63. [ Return to text ]In light of the Supreme Court of Canada’s decision in Sauvé [Sauvé v. Canada (Chief Electoral Officer) [2002] 3 S.C.R. 519], it is questionable whether a Court would find that denying the right to vote to individuals who have been absent from Canada for a long time but who intend to return as residents is a reasonable limit on the right that can be demonstrably justified in a free and democratic society. It is indeed difficult to explain what pressing objective is served by distinguishing between those who have been absent from the country for five years as opposed to six, ten or twenty years. While it may be true in some cases that after a number of years of absence from Canada one’s awareness of Canadian current affairs may diminish, the correlation between absence from the country and the level of knowledge of public affairs occurring in the country may not be sufficiently clear to constitute a reasonable ground to deprive someone of their right to vote. It should also be noted that awareness of current public affairs is not required from Canadian citizens living in Canada for them to have the right to vote. Finally, there is no significant operational impediment in extending the application of the Special Voting Rules currently available to Canadians living outside the country to those Canadians who have been absent from the country for more than five consecutive years.[ Return to text ]
(230 kB, 39 pages), Thirteenth Report, 1st Session, 39th Parliament, June 2006, p. 2. [ Return to text ] (570 kB, 63 pages), Ottawa, August 2011, p. 31. [ Return to text ] (2.46 MB, 160 pages) Ottawa, 2006, p. 123. [ Return to text ]© Library of Parliament