What sections of the Charter of Rights and Freedoms would you be challenging?
Section 3 guarantees us the right to vote, and Section 15 guarantees us equal treatment before the law.
The Supreme Court of Canada under Chief Justice Beverly McLachlin has interpreted our right to vote as a right to effective representation: “Each citizen is entitled to be represented in government. Representation comprehends the idea of having a voice in the deliberations of government” Since half the voters are not represented by an MP they support, their voices are excluded from government.
We also have a right to equal benefit of the law. Again, if half of us are able to have an MP we support, but the other half can’t (based on their political ideology), then half of us are being discriminated against.
Is there any legal precedent for ruling a voting system illegal?
It hasn’t happened yet in Canada, but in the US, the at-large bloc voting system (the voting system used in most cities in BC) has been ruled discriminatory to minorities and prohibited in a number of cities (eg, in Maryland, New York, Ohio, California and elsewhere). Various state laws have been passed or are being considered (eg, in California, Illinois, Washington and Florida) that make it easier to challenge discriminatory voting systems. The California act explicitly accepts various proportional or semi-proportional voting systems as acceptable replacements (e.g., limited vote, cumulative vote, single transferable vote) [reference paper].
What are the key previous cases?
There have been a number of relevant cases in Canada since the Charter was adopted in 1982:
- The 1986 Dixon case in BC found that it was unconstitutional to have too great a disparity in voting power between ridings (a riding in northwestern BC had only one-sixteenth the population of a riding in Surrey). The court declared that the intent of our right to vote was a right to effective representation, which was further explained in the 1991 Saskatchewan Boundaries Reference case: “Representation comprehends the idea of having a voice in the deliberations of government“.
- The 2003 Figueroa case overturned a government rule that prevented candidates from having their party’s name on the ballot unless the party ran 50 candidates. In this case, the judges further defined our right as including the concept of meaningful participation, saying “Section 3 imposes on Parliament an obligation not to enhance the capacity of one citizen to participate in the electoral process in a manner that compromises another citizen’s parallel right to meaningful participation.“
- The 2004 Raîche case has most explicitly discussed the concept of representation, saying “The Supreme Court has recognized that the fears of a minority group that it may not be adequately represented by its MP are not without basis for, in a democracy, the reality is that, faced with the conflicting interests of the majority and a minority, the elected representative may have to choose to represent the majority interest. … The evidence was to the effect that the Acadian minority in Miramichi did not have effective representation. The MP for Acadie-Bathurst testified that Miramichi’s francophones came to him for help, their MP being a unilingual anglophone.”
- More recently, Daoust (2007) argued in Quebec that our voting system was discriminatory, though this case was rejected both in the initial hearing and on appeal.
If there’s been a similar case that was rejected, what’s the point in trying again?
We have been advised that, while the plaintiffs in the Quebec case did raise a number of strong points, there are additional points that could be made, particularly focusing on how our voting system systematically denies effective representation to the half of the voters who do not vote for their MP (following the logic presented in Raîche). In addition, we are advised that there are aspects of the judgement that can be questioned and that the ruling itself, though possibly of persuasive value, strictly applies as a precedent only within Quebec and not to a case at the federal level.
How likely is it that the challenge will succeed?
Frankly, we have been advised that our odds of succeeding are less than even, but the case would be able to raise some very interesting outstanding legal and political questions that would be worth having a more definitive ruling on from the court, whatever the outcome.
Are there other reasons to consider pursuing this case?
Even if we do not win this case, pursuing it can give us all a new civil rights lens for understanding what we’re fighting for, which makes it much clearer why governments must implement reform, rather than treating it just as maybe a good idea, but not something essential. Once we can clearly see the exclusion and discrimination that lie at the heart of our current voting system, it will make it much easier to make the switch in future. It will also keep pressure on politicians to take further steps towards voting reform – perhaps by launching an authentic consensus-building process to choose a voting system that addresses these Charter concerns (maybe a national Citizens’ Assembly?).
Won’t this case cost a lot?
When you consider that the government already spent $3M on its laughable mydemocracy.ca ‘survey’ and some were calling for a $300M referendum that was likely to be divisive and misleading, the idea of spending a mere $300,000 or so to have a reasoned and impartial public examination of the civil rights implications of our current voting system strikes us as a positive bargain.