The majority in the case focuses on Charter issues. They find the individual right of a non-resident to participate outweighs the interest of Canada in connecting voting to residence, and see no great problem in potentially large numbers of voters who don't live anywhere in Canada. Smith:
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.My occasional reading of SCC decisions in my legal history work has left me with a very great respect for Supreme Court judges and how they manoeuvre through the thickets of constitutional interpretation. But on this one I think Smith, and the dissenters (and the Ontario Court of Appeal, which was overturned here) have a point.
Smith is essentially arguing on the principles of the 1867 constitution, now called the "Constitution Act, 1867," which sets out principles of parliamentary democracy. The judges here, however, are interested almost exclusively in the Charter, which sets out individual rights vis-a-vis governments. It's as if lawyers and judges and many other Canadians kinda lost interest in much of the original constitution, once they had the shiny new Charter to work on.
