The recent decision in Frank v. Canada (Attorney-General) 2019 SCC 1 striking the non-resident voting restrictions for federal elections in the Canada Elections Act has opened the possibility of more non-residents of Canada voting in our federal elections. However, non-resident citizens who do wish to vote here, but are considered (or wish to be considered) non-resident in Canada for tax purposes should probably consider whether they want to do so.
Tax residency in Canada is based on several factors, but one extremely important one for those who were once residents, but have left, is the continuation of their “ties to Canada”. CRA’s “Residency Determination Advisory” computer program that it uses to make these internal decisions has a list of 30 “ties”, eight of them “primary” and the remainder “secondary” which bear less weight. Previous decisions of courts have considered a majority of these in their decisions on residency determination.
Voting in Canadian elections is not currently one of them (although it would be open for CRA to consider these among the catch-all category of “other ties to Canada”). However, I noted that one Tax Court of Canada case, Perlman v. The Queen 2010 TCC 658 on residency (where the taxpayer was found to be non-resident) did consider, in the recitation of facts, that he continued to vote in Canadian elections:
[15] Since leaving Canada he has continued to vote in Canadian elections, joined a Canadian political party and was appointed a Deputy Warden by the Canadian Embassy in Israel. He has maintained his Toronto religious relationships and has been offered a faculty position in Toronto. He has not voted in Israel and he understands he is not entitled to.
Although this voting behaviour was not considered in the judge’s reasons, further cases of the Tax Court have cited Perlman and indeed sometimes list his voting in Canada as part of their review of the facts of his case. It does appear that Tax Court judges, at least, have this issue potentially on their radar in determining residency for tax purposes (and the significant implications of that).
No word yet from CRA on whether, in light of Frank, they will determine continued voting as a factor. I suspect that they will take a hard look at it.
