Why Denying Montréal Students the Right to Vote Has No Basis in Law

I moved to Quebec in March 2012, six months before the last provincial election. Falling right within the 6-month residency requirement, I registered and voted without any problem. Last election I lived and voted in the district of Sainte-Marie Saint-Jacques, I now live in Westmount St-Louis.

Amid massive media hysteria around out-of-province voters, I went to the Quebec electoral offices this morning to change my address and riding. Arriving at the offices, everyone was friendly and kind. As soon as I sat down, I was asked to provide a Quebec driver’s licence or health card. I have neither. I have Hydro-Quebec bills, T4s, letters from Revenue Quebec (I pay Quebec taxes) and a Montreal lease. I am currently trying to find an articling position in Montreal so that I can join the Quebec bar in 2016.

I was not asked to provide any of that evidence or asked if I intended to remain a Quebec resident. The woman interviewing me declared that as a student paying out-of-province tuition I was not domiciled in Quebec. The end. When I insisted that I had voted in the last election she retroactively declared that I was not eligible back then either and that I’m lucky I haven’t been charged with voter fraud. It’s hard to argue with someone over an administrative decision when you’re being accused of a serious criminal offence. Upset, I left the office.

I walked around for 15 minutes thinking about the logic. A year and a half ago, I was “domiciled” enough in Quebec to register and vote without any trouble. Having now spent much longer in Quebec and paid more Quebec taxes, I’m no longer domiciled here. I went back and insisted the office manager explain this decision. When he came out I shook his hand and introduced myself. He responded by asking me if I was recording our conversation. I promised I wasn’t and then I pointed out that I had voted last election. I was immediately told that it was no problem to simply change my address and this was done by looking at my passport and a Hydro-Quebec bill. But no one ever pointed out to the woman who had previously denied me that she had made the wrong decision, even though she was sitting right next to me while my address was being changed. She was helping a nice young man from Alberta register (he had a health card and driver’s licence) while telling him that the fact that she let him register despite the fact that he is an anglophone proved that there was indeed no discrimination going on.

I disagree. There is clearly systemic discrimination of students, anglophones and allophones. Unquestionably, the people who work at the registration office have discretion to apply Quebec Election law. However, decisions must still be a reasonable interpretation of the law to be legitimate. Even with discretionary power you can’t deny someone the right to vote because you don’t like their hair, but you can if they’ve only lived in Quebec for 5 months.  This is what we call the rule of law, where decisions must follow statutes, rather than the rule of man, where people in power can decide things however they like. So what does the law say?

Elections Act:  Every person who  (1) has attained 18 years of age,  (2) is a Canadian citizen,  (3) has been domiciled in Québec for six months, […] is a qualified elector. The domicile of a person is the domicile established under the Civil Code.

The Civil Code states that: 75. The domicile of a person, for the exercise of his civil rights, is at the place of his principal establishment. 76. Change of domicile is effected by actual residence in another place coupled with the intention of the person to make it the seat of his principal establishment. The proof of such intention results from the declarations of the person and from the circumstances of the case. 77. The residence of a person is the place where he ordinarily resides.

In making the decision as to whether I could vote or not, the electoral officer only considered one factor: the type of tuition I pay. However, this factor is not mentioned anywhere in the law and is based on different time limits. One must live in Quebec as a non-student for a year to qualify for Quebec tuition. Yet the Election Act says you need only be a resident for 6 months. By insisting that I need to pay Quebec tuition to qualify to vote, the electoral officer was essentially rewriting section 1 of the Electoral Act to read “12 months” rather than 6 months. Had the legislature wanted to make the requirements for qualification the same for both they could have written “1 year” in the Election Act, but the legislature didn’t.

If having a Quebec driver’s licence of health card were the only way to prove “intention to be domiciled” under the Civil Code, the Quebec legislature could have written that requirement into the legislation. But it didn’t. Instead article 76 speaks only of “intention” and “circumstances of the case.” I was never asked about my intention to be domiciled in Quebec while attempting to register (though I did try to argue that I would be joining the Quebec bar, the electoral officer wasn’t interested). I was never asked where I ordinarily resided (the electoral officer was more interested in asking me about where my parents live). Now were the circumstances of my case examined in any way. Instead, my tuition status and lack of Quebec identification were the only criteria used to declare my ineligibility.

It’s always extremely problematic when an administrative decision maker fails to consider the law when making a judgment, because it leaves open the possibility that they will be motivated by personal bias or irrelevant criteria. This is especially true with voter rights, which are protected by the Canadian Charter. This morning I witnessed an electoral officer operate with impunity as she repeatedly made decisions that adversely affected constitutionally protected electoral rights (she denied three students in the 30 minutes I was there).

The last student she denied got upset and so he was escorted out of the building by security. I took some pictures so that students in Quebec can know how they will be treated when they attempt to exercise their civil rights. As a result of taking pictures, I too was escorted out of the building and banned for life from returning.  So I guess I’ll have to wear a disguise next week when I return to elect a government that respects students, the constitution and the rule of law.

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8 Responses

  1. Emily, As you describe it very eloquently, the election officer you spoke with was violating her duty to apply the law. If she was following instructions from her superiors, then they are not applying the law. An election officer was recorded this week saying that if there is ANY doubt, their instructions are to refuse registration. That burden of proof is also not in the law. (I heard the recording on cbc radio this morning).

    By the way, in Quebec one can legally record a conversation that one participates in without informing the other party.

    It is very disturbing that you have been given no indication that the woman who initially refused you has been instructed that she has not been interpreting the law properly. Are the superiors afraid of receiving a union complaint for correcting one of their employees? One does not know. And in the background, it is public knowledge that the civil service unions strongly support the PQ.

    Voter suppression is one of the most outrageously harmful actions against a democracy. Your actions are courageous and very important.

    I encourage you to tell your story in a letter or posting to La Presse, and Radio Canada so that fair-minded francophones are aware of this egregious behaviour. It is clear from past behaviour that Elections Québec responds to public pressure.

    Sincerely,
    Richard S. Levy,
    Member of the Quebec Bar since 1975

  2. Emily, the revisor in question is clearly not following the law. You clearly and eloquently stated that the law is written with certain requirements and requiring something other than what is in the law. It is terrible that people who have had 7 hours of training and probably are not lawyers nor have ever read a legal statute are so sure of themselves that they can ignore the law or even reasoned arguments and deny people one of their most fundamental constitutional rights.

    I am glad the “office manager” allowed you to register, but it is distressing to hear that the revisor involved is still making these decisions and was not corrected. She is required to follow the law and if she isn’t she is neglecting to perform her duty and, if after being informed so is still not following the law, she should be dismissed by the returning officer (probably your “office manager”) as per art 141 of the Election Act. I encourage you to file a complaint with the DGE in Quebec City ( http://monvote.qc.ca/fr/nous_joindre.asp ) and contact media or the political party/parites of your choice so they are aware of this. I had a conversation with a woman on Facebook today who claimed she was a revisor and would demand documents that were not required by the law, so it is likely this is going on in many ridings, but what someone says on Facebook is not enough to make a complaint.

    Lastly, I’ve written a rather lengthly post on this issue and have talked to a number of people who have tried to register. I don’t have any formal legal training, but I was a former provincial returning officer, and I can read. If anyone seeing this is looking for advice on how to prove their domicile so they can register to vote, I suggest they read my post (again, not legal advice, I’m not a lawyer): https://www.facebook.com/telso314/posts/10101543846017137

    All the best,

    Nicholas Smith

    P.S. Mr. Levy, election workers who work in a riding are not unionized; only those who work full-time for the DGE, in Quebec City, are part of the civil service. All workers in a riding can be dismissed for cause, and though there are protections for some (revisors, returning officers and assistant returning officers, because they are meant to be independent), it is not complex to dismiss a local worker and there are no unions involved in any way.

  3. I second the above reply. I probably don’t know nearly as much as Mr. Levy does in regards to this matter, but the scenario you described is absolutely enraging and it needs to be publicized so everyone knows about how Elections QC has been mishandling the whole situation – all thanks to the fear-mongering of the PQ.

    Great blog post. Thanks for writing.

  4. Évidemment, un étudiant qui n’est pas originaire de la province ne devrait pas se voir refuser le droit de vote simplement parce qu’il est étudiant, particulièrement s’il semble s’agir d’une décision arbitraire et/ou discriminatoire. Une décision arbitraire ou discriminatoire est inexcusable et doit être dénoncée.

    Toutefois, le simple fait d’étudier au Québec – et d’avoir certains documents prouvant la résidence (qui est un concept factuel), tels que des factures d’Hydro-Québec, des T4, des lettres de Revenu Québec ou encore un bail – n’est pas en soi suffisant pour établir le Québec comme domicile au sens du Code.

    Comme l’indique la Cour supérieure sur le concept juridique de domicile:

    “[20] Ainsi, pour changer de domicile, il importe non seulement de s’établir en un nouveau lieu, mais également d’avoir l’intention de faire de ce lieu son principal établissement, c’est-à-dire l’intention de s’y établir définitivement ou pour un temps indéfini (par opposition à temporairement).”

    Droit de la famille — 122854, 2012 QCCS 5169

    Suivant l’interprétation jurisprudentielle des articles 75 CcQ et suivants, il faut donc démontrer l’intention de s’établir “définitivement” ou pour “un temps indéfini”. Refuser le droit de vote à un étudiant pourrait – et je dis bien pourrais – ainsi être justifié si la personne ne peut prouver cette intention de s’établir définitivement ou pour indéfini dans la province, et que l’établissement au Québec semble au contraire temporaire – ce qui pourrait être le cas de plusieurs étudiants non originaires de la province.

    Je ne connais pas ta situation, et je ne mets pas en doute ton intention de t’établir au Québec. Et je le répète: une décision arbitraire ou discriminatoire doit être dénoncée. Par contre, il faut se garder de généraliser: il se pourrait bien que cette intention ne soit pas partagée par tous les étudiants non originaires du Québec voulant s’inscrire sur les listes électorales du Québec, auquel cas le refus du droit de vote pourrait être justifié.

    • The DGE has improperly reversed the onus on students.

      Finding that a Quebec student who has proof he or she resides in Quebec is not also domiciled in Quebec requires finding (a) that there is no intention to establish themself in Quebec for a non-temporary period, (b) there is another residence elsewhere that would constitute a “principal establishment”, and (c) “certainty” that the other residence is in fact the principal establishment.

      Art. 78 CCQ, in conjunction with Art. 76 CCQ, sets a person’s residence as their default domicile and requires “certainty” about the person’s intention to establish themselves elsewhere than Quebec, before allowing the determination that a domicile is not that person’s place of residence.

      The CCQ sets a high test, and rightfully so. Absent extenuating circumstances, you should be able to vote where you live.

  5. Electoral officer here.

    The law is clear: you are an out-of-province student, who is not domiciled in Québec.

    You are domiciled in your province of origin, therefore you are not eligible to vote in Québec, just as Québec students are not eligible to vote in your province.

    End of discussion.

    • Jean,

      The law is clear in that it makes no reference to province of origin, nor whether you are a student or not. All that matters is current domicile. Those factors can affect that, but they are not determinative.

      Further, there are tens of thousand of election officers, who only get a cursory training and can have their own personal opinion, but let’s not pretend that suddenly because you say this is clear it is. The DGE is much less clear than you seem to be.

      The law does state however that domicile is based on the intention of the person, and that their declarations are proof of that intention. So this is only the beginning of the discussion.

      Nicholas Smith

    • Jean, with respect, the statement “You are domiciled in your province of origin” is not correct. As Nicholas points out, someone who has moved to Quebec to pursue university studies may or may not have changed their domicile, according to the criteria set out in the CCQ (you can find out which ones, and why, in the discussion above).

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