Various political parties in Canada have supported electoral reform while not in power and during election campaigns, only to back away from the promise of reform once elected, when proportional representation is no longer in the short-term self-interest of their party.
Most recently, the Liberal Party under Justin Trudeau promised electoral reform in 2015, but the pattern has been going on for 100 years – the Liberal Party endorsed proportional representation (Single Transferable Vote – proportional ranked choice voting) in 1919: 100 years of broken promises on electoral reform.
The 2016 Electoral Reform Committee (ERRE) met for five months and heard from Canadian experts and experts from around the world. 88% of the experts who testified and 87% of the citizens who participated supported proportional representation. When the report was released, the Liberals held a separate press conference and produced a Supplementary Report recommending the government break its campaign promise, calling it “radical” and “hasty“.
In 2020, the Ontario government removed the option for municipalities to adopt ranked choice voting in Bill 218, Supporting Ontario’s Recovery Act, 2020.
Given this lack of progress, the Charter Challenge for Fair Voting was established in 2017 by Springtide and Fair Voting BC initiated a Charter Challenge – which is currently before the Ontario Supreme Court – asking the Courts to decide whether or Canada’s first-past-the-post (FPTP) voting system infringes on Canadian’s rights.
Their argument is that while the Canadian Charter of Rights and Freedoms guarantees Canadian’s right to vote and right to equal treatment, Canada’s first-past-the-post (FPTP) voting system leaves more than 50% of voters are not represented in Parliament and discriminates against women and minorities:
whether Canada’s highly disproportional method of translating votes into seats (called single member plurality (SMP) or, more colloquially, “first past the post” (FPTP)) violates ss. 3 and 15 of the Charter, by failing to provide effective representation to all Canadian voters and by discriminating against women and minorities.
FACTUM OF THE APPLICANTS, FAIR VOTING BC AND SPRINGTIDE COLLECTIVE FOR DEMOCRACY SOCIETY
Goals
1. To have the court rule that our current voting system contravenes the Charter
2. To have the court order the government to adopt a voting system that complies with the Charter
Timeline
October 2019 – Filed the case with the Ontario Superior Court
May 2021 – Served the government affidavit and evidence package
Fall 2022 – Received the government’s affidavits in late Fall 2022
September 26-28, 2023 – Case heard in the Ontario Superior Court
September 1, 2023 – Government argues that proportional representation has no merit under constitutional law
Electoral reform has long been a subject of debate in Canada. For over a century, Parliament and various royal commissions have studied whether to change the federal electoral system, commonly referred to as First Past the Post (“FPTP”) or Single-Member Plurality (“SMP”). At the provincial level, voters have considered electoral reform in seven referenda and plebiscites in the last twenty years. Despite a lack of consensus, the Applicants ask this Court to impose sweeping changes to Canada’s electoral system, reversing decades of settled jurisprudence. As a matter of political science, their arguments in favour of proportional representation (“PR”) may be worthy of debate. As a
matter of constitutional law, they are without merit.
November 30, 2023 – Court makes the following “findings of fact”
Violations of the principle of “Majority Rule”
Judge concluded that the significant disproportionalities generated by FPTP lead “to uses of power by a plurality of voters that is far from a majority”.
Source
Impaired participation
Judge concluded that “[FPTP] reduces the participation and democratic satisfaction of voters compared to [Proportional Representation (PR)] and that strategic voting under [FPTP] is “prevalent”
Source
Discrimination
Judge accepted the evidence of Dr. Erin Tolley that “significant disparities in economic resources, community engagement, organizational efficacy, and political interest, among racialized groups … lie at the heart of the underrepresentation of minorities in political office [and that] [t]hese factors are all external to the electoral system” and then concluded that, since changing the voting system wouldn’t eliminate these pre-existing disparities, it’s not certain that FPTP causes under-representation of racialized groups.
Source
Under-representation of women
The judge “accepted that “countries with PR systems tend to elect a somewhat higher percentage of women than those with [FPTP] systems”, parties seem to be “more amenable to female candidates where they will attain seats in direct proportion to their votes”, the adoption of a PR system “might… provide incentives for political parties to nominate more women candidates”, and the “overwhelming and consistent worldwide consensus on the benefit of PR for women’s representation”
Source
Judge concluded that “Causation of the gender disparity is far from proven” and stated that “it is self-evident that while electoral systems may be tangentially implicated, the particular type of system – whether SMP or PR – is not the cause of women’s comparative advantages or disadvantages across societies.”
Judge found that our current voting system “reduces the voices of voters in government and Parliament’s democratic legitimacy; it violates the principle that all votes should count equally, resulting in the unfair representation of small party voters and in the frequent exercise of minority rule; and it engenders voter dissatisfaction and apathy.”
November 30, 2023 – Court dismisses application, finds FPTP is not unconstitutional
No one of these values comprise the whole of what constitutional analysis is all about. It is important that any electoral system cover, to one extent or another, all of the values that the Constitution enshrines. Justice LeBel therefore continues his analysis, at Figueroa, para. 161, with
the observation that,The Constitution of Canada does not require a particular kind of democratic electoral system, whether it is one that emphasizes proportionality and the individual aspects of participation or one that places more emphasis on centrism
and aggregation…All that is to say that the issue before the court is not whether a PR system is or could be designed to be a fair and effective electoral methodology. If that were the issue, I would be tempted to answer it in the affirmative. The Applicants have done an admirable job demonstrating that.
The real question here is whether the SMP system currently in place is unconstitutional.
For the reasons that follow, I find that it is not.
December 29, 2023 – Charter Challenge appeals the decision, says Court didn’t draw the appropriate legal implications from their findings
identified that the judge “fell into error” in three main ways:
- Dismissing our Section 3 claims that First Past the Post (FPTP) infringes our rights to effective representation and meaningful participation
- How he treated our Section 15 (equality) claims
- Finding that the Constitution Act supports the constitutionality of FPTP
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