Wednesday, December 28, 2005

Michael Ignatieff's eligibility disqualification - part 2

The Michael Ignatieff candidacy hinges on whether or not he is "ordinarily resident" or not. See the Canada Elections Act, section 6 and 8. A plain meaning explication of this term leads to Ignatieff's disqualification - as one person put it, "ask him where he has paid his taxes over the past 30 years."

But on a more legal note, this is what Elections Canada and Parliament have to say about residency: The new information brought to my attention is pretty damaging information. That is, there are really two relevant factors here determining relevant to determining Ignatieff's candidacy:
  1. Length of absence from Canada
  2. Intention of residency
On the first point, Michael Ignatieff has lived outside Canada for more than 5 years. Prima Facie, he is not eligible to vote:

"If you are an elector (a person who is eligible to vote) and have been living away from Canada for less than five consecutive years since your last visit home, you are eligible to vote under The Special Voting Rules."

Ignatieff has been living away from Canada for more than five years. Thus, he runs afoul of the ordinarily resident clause in the Canada Elections Act, explained here by Parliament:

"Since 1993, Canadian citizens who reside outside Canada have been permitted to vote in federal elections provided they have been absent for five years or less and plan to return to Canada."

Ignatieff has not been absent for five years or less. I thus infer that he is not eligible to vote if the above information is correct.

Ignatieff only can be eligible to vote based on one factor: intention. If Ignatieff intends to reside in Canada again, he can vote. Ignatieff is not saved by his intentions, though. As he said before, he intends to go back to Harvard: “If I am not elected, I imagine that I will ask Harvard to let me back." Further, after politics, if elected, he still plans to go back to Harvard: “It would be an honor to return to Harvard once my political career is concluded."

I see no way to interpret his comments as a "joke." Who is laughing?

Besides, as one commenter put it more or less, we have a right to know what Ignatieff's permanent address is.

*****Correction: As someone stated correctly in the comments, Ignatieff is not prevented from voting per se. He may indeed be eligible. The problem is merely finding out which electoral district he was living in. If Ignatieff has bought some sort of permanent place, these questions surrounding his candidacy are answered. If Ignatieff does not have any place he is "ordinarily resident" at all, then I think all the above still applies.

As far as this comment goes, that "the "5 year" rule you continue to cite only applies if a person is currently absent and has been so for for 5 years or more," I have not seen any evidence to suggest that it only applies to people currently absent. When I read the material from Elections Canada's own website, it talks about past ("have lived") not the present ("currently lives").

5 comments:

Anonymous said...

A lot of problems here.

First, I'm not even sure of the reason for your post given that your argument is based upon the often repeated conjecture that Ignatieff "intends" to return to Harvard. That does not appear to be the case. A full reading of that Crimson article - as well as further interviews that Ignatieff has done to clarify the issue - indicates that Ignatieff intends to remain in Toronto teaching at UofT. As for Harvard, Ignatieff simply says that "some teaching" at Harvard at some point again would be wonderful. Isn't it a bit rich to say a professor of human rights at UofT could never return to his prior school for a temporary visitorship or teaching chair at some point in the distant future? I mean, much of your argument is based on this shaky premise.

But let's get to the fun stuff.

Unfortunately, your conclusions about sections 6 and 8 and residency requirements are incorrect.

As noted in a previous comment on your last post, section 65 says that any person "qualified as an elector" other than as excluded by that provision is entitled to be a candidate. You concede that none of these exclusions apply, but maintain that ss. 6 and 8 work together to prohibit Ignatieff's candidacy. That is wrong.

Section 3 encodes a general rule of application:"Every person who is a Canadian citizen and is 18 years of age or older on polling day is qualified as an elector."

Thus, Ignatieff is "qualified as an elector" since he is a Canadian citizen and is 18 years old. Since Ignatieff does not fit the excluded persons under section 4, he is a qualified elector.

Section 6 only addresses _where_ an elector may be added to a polling list, being the place the person is ordinarily resident.

Section 8 provides, which I will quote in full, help for applying section 6, by defining "place of ordinary residence":

The place of ordinary residence of a person is the place that has always been, or that has been adopted as, his or her dwelling place, and to which the person intends to return when away from it"

I believe media reports have said that Ignatieff has recently bought a house in Toronto and is residing there. He therefore has "adopted" Toronto as his place of ordinary residence.

The "intention" which you think is important, only becomes relevant if the elector is presently absence from Canada. Thus section 8 says "or where the person intends to return when away from it".

This is the purpose of "special voting rules" under Part 11. For those people who fall under section 3 (Canadian citizen + 18 yrs) but are presently absent from Canada, Parliament has provided the administrative scheme in Part 11 to allow those people to still vote in elections. This reading is supported by the types of people who can use the scheme under Part 11: Canadian forces, public servants posted outside Canada, a person absent from Canada less than 5 years or more.

Thus, the "5 year" rule you continue to cite only applies if a person is currently absent and has been so for for 5 years or more.

These requirements were never intended to exclude a Canadian citizen over 18 years who is presently residing in Canada from running in a democratic election. Your reading of ss. 6 and 8 would clearly run afoul democratic voting rights under section 3 of the Charter.

I hope this clarifies the issue. I look forward to your correction.

Jonathan said...

This says nothing about one's present living conditions. It merely says if you "have"...that is, in the past, not the present: "If you are an elector (a person who is eligible to vote) and have been living away from Canada for less than five consecutive years since your last visit home, you are eligible to vote under..."

Secondly, the question remains to be seen - where is his permanent address? I think my rhetoric will be pretty much silenced once it is determined he has settled somewhere in Canada. But since that information is not out yet, I can only treat him as a non-resident until any rumours are confirmed.

Jonathan said...

Finally, I still think the Canada Elections Act will be overruled in any challenge to these rules based on the Charter of Rights, which allows any citizen to vote.

Anonymous said...

Interesting story on point: http://cnews.canoe.ca/CNEWS/Politics/CanadaVotes/2006/01/01/1375418-cp.html

Anonymous said...

Jonathan - doesn't the following settle the issue? From a story in the Globe dated December 8, 2005:

"In his affidavit to the appeal committee, Mr. Ignatieff said he and his wife decided to relocate to Toronto in June, 2005, and that month bought a condominium -- in Toronto's Yorkville neighbourhood, not in Etobicoke-Lakeshore. The couple took possession of the condo on Sept. 26 but have been staying in a hotel while renovations are done."

Of course there is no residency requirement for a candidate's riding. Ignatieff is 18, a Canadian citizen and presently residing in Toronto.

As such, there is no question that he is a qualified elector and therefore is perfectly entitled to run as a candidate in Etobicoke-Lakeshore.