Last year saw what was arguably one of the more novel long-shot legal cases: a coalition of election-reform advocates argued in an Ontario court that Canada’s federal-election laws violate important sections of the Charter of Rights and Freedoms. Specifically, they argued that Canada’s (and, by implication, every province’s) system of single-member plurality elections, or “first past the post,” violates both the right to fair elections and the Charter’s guarantee of substantive equality under the law. In their view, it should be replaced with a more proportional system, such as those used by many other jurisdictions around the world.
At the end of November, Justice Edward Morgan delivered his decision: the system of elections that Canada inherited from the United Kingdom in 1867 and has used federally and provincially, with few exceptions, for more than a century wasn’t made unconstitutional when Canada adopted the Charter of Rights and Freedoms, in 1981.
“The Charter is a crucial part of the Canadian constitution,” Morgan wrote in his decision. “Nevertheless, it is only a part of a larger whole and must be approached with that in mind.”
But advocates aren’t walking off the field. Nicolas Rouleau, lawyer for Fair Voting BC and the Springtide Collective, says his clients are in the process of appealing Morgan’s decision to the Ontario Court of Appeal. He acknowledges that convincing higher courts that Morgan was wrong will be an uphill battle.
“It’s an argument that hasn’t been put before, and it’s premised on the evolution of the law over the last few decades, as well as a whole set of new evidence that has arisen over the last 40 years,” Rouleau told TVO Today in a phone interview Thursday. “The weight of the literature is pretty clear as to the shortcomings of first-past-the-post and the benefits of [proportional representation].”
The arguments that reformers made in court flow from well-documented distortions of Canada’s elections: parties can win legislative majorities — in either the federal House of Commons or provincial assemblies — with a minority of the vote and, indeed, without having won more votes overall than an opposing party. At the riding level, this means that an MP can be elected with less than 50 per cent of the vote, leaving the majority of voters without effective representation if their elected representative ignores complaints that don’t align with their partisan affiliation. The right to vote, guaranteed by Section 3 of the Charter, is supposed to mean more than just the right to mark a ballot: it’s supposed to mean the right to have some meaningful input into government. And our current electoral rules, critics say, interfere with that right more than the Constitution should allow.
First-past-the-post also infringes on equality rights guaranteed by Section 15 of the Charter, its critics allege, pointing to a substantial evidentiary record. Parties have incentives not to take perceived risks on candidates and to put forward “safe” ones, in the process too often pushing people from more marginalized communities out of politics.
“Section 15 is there to push for substantive equality,” Rouleau says. “We have a system that doesn’t encourage and incentivize parties to put forward women as candidates or that incentivizes them to put minorities as candidates in unwinnable ridings.”
Despite being disappointed in Morgan’s decision, Rouleau says he’s encouraged that the judge acknowledged many of the unfair aspects of the current system, even stating in his written reasons, “To be sure, the Applicants have shown that PR would be a fair system.” Nevertheless, Morgan concluded that, despite its flaws, first-past-the-post is not unconstitutional and can stay in place until Parliament opts to change it.
That suits the Canadian Constitution Foundation, which argued as intervenors in the case that courts should adopt a “presumption of continuity” in Charter cases.
“Ours is an evolutive legal order in which the Charter wasn’t intended to upend everything that came before it,” says Asher Honickman, one of the CCF’s lawyers in this case. “Core aspects of our legal system should be presumed to continue unless they are expressly modified by constitutional change.” Since the Charter doesn’t expressly declare first-past-the-post to be unconstitutional, Honickman says, courts should leave it alone — and Morgan largely agreed.
For clarity, the CCF isn’t arguing that proportional representation is prohibited by the Constitution — though some specific forms might be incompatible with guarantees made to the provinces, like Prince Edward Island’s guarantee of four seats — but rather that the status quo is not itself unconstitutional.
To put it another way: it’s not the role of the courts to do the job of electoral reform. “The system cannot be ousted by the Charter through vague inference or implication,” the CCF’s litigation director, Christine Van Geyn, said in a statement last year. “It is up to Parliament to decide if the system should be changed.”
But the courts aren’t done with this case yet. It’s headed to Ontario’s highest court later this year, and whoever prevails there, it’s likely one side or the other will at least ask the Supreme Court to hear it.
Rouleau understandably hopes that a higher court will adopt a more expansive view of Charter rights than Morgan did; Honickman warns, however, that the real-world impacts of a court overturning the election system in Canada could be messy and chaotic. Any decision overturning first-past-the-post would have to give governments time to bring their election laws into Charter compliance, but how much time? The Constitution also requires a general election no later than 2026; Canada’s fixed-election law says 2025. Could the current Parliament, before the next election, realistically implement a proportional system that complies with Canada’s other constitutional rules? (The current prime minister was elected on a clear promise, in 2015, to abandon the status quo, but he didn’t see it through, despite then having a majority in the Commons.) If it couldn’t, how would we view the results of an election held under a system that had already been found to violate the Charter?
Faced with those prospects, it seems more likely than not that the courts will reaffirm Morgan’s decision and leave electoral reform to the elected politicians. Given recent history, that’s undoubtedly a dismal prospect for champions of reform. But it at least doesn’t close the door to winning the argument via the ballot box.
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