Electoral System Charter Challenge FAQ
How can an electoral system be unconstitutional?
In 1982, Canada committed itself to respecting the basic rights and freedoms of all Canadians by enshrining them in the Charter of Rights and Freedoms. Because the Charter is a part of our constitution, or "supreme law", any policy or law, or part thereof, which violates those constitutional rights is deemed to be illegal, and cannot be enforced. This means that, if the Canada Elections Act, or parts of it, violate the rights in the Charter, it must be replaced by an electoral law which respects these rights.
The claim in this case is that the system which the Canada Elections Act uses to translate votes into seats, which is called a single-member plurality, or ‘winner-take-all’, system, violates the right to vote in section 3 of the Charter, and the right of equality in section 15 of the Charter.
A law which limits the rights in the Charter may nonetheless be found constitutional and legally valid, as long as the government can justify the limitation under s. 1 of the Charter. In this case, the claim is that the winner-take-all system in the Canada Elections Act cannot be justified, because there are a variety of other systems, all based on the principle of proportional representation, which more fully respect the right to vote and the right of equality, and because the current system does far more harm than good.
What is a Winner-Take-All electoral system?
In Winner Take All (WTA) electoral systems only candidates who win the largest number of votes in defined geographic areas win seats in Parliament, or a legislative assembly. Votes cast for other candidates count for nothing in terms of receiving representation in Parliament. The system is sometimes called a Single Member Plurality (SMP) system, because it chooses only one person from each riding (the single member) and allows him or her to win even without a majority of votes. A ‘plurality’- simply getting more votes than any other candidate - is all that is required. It is also commonly called a First Past The Post (FPTP) system.
How does Canada’s electoral system violate the right to vote?
Section 3 of the Charter protects the right of every citizen of Canada "to vote in an election of members of the House of Commons or of a legislative assembly". This, of course, means more than simply the right to mark an ‘X’ on a ballot and put it in a box - otherwise, there would be no obligation to count the votes at all. They could be discarded, or count for nothing. At a minimum, the right to vote in the Charter places an obligation on the government to ensure that votes are counted in a way that is consistent with the democratic nature of our system of government. As the Supreme Court has said in earlier decisions, the right to vote means that the votes of citizens must count equally, as far as possible, so that each citizen has a ‘parity of voting power’ in comparison with others. The Court recognized that sometimes this is not possible, since in some rural ridings the population is widely dispersed and representatives have a harder time ensuring that their constituents’ interests are adequately represented. Thus, the Supreme Court has said that to ensure ‘effective representation’, limited diversions from ‘parity of voting power’ may be permitted. These two principles of ‘parity of voting power’ and ‘effective representation’ are what the right to vote means in law under the Constitution.
The system that the Canada Elections Act uses to translate votes into seats violates these two principles. First, because all votes cast for ‘losing’ candidates do not count toward assigning seats in the Parliament, the Act results in huge disparities in the value of votes cast by supporters of different parties. For example, in the last federal election, on November 27, 2000, the Progressive Conservative Party received 1,566,998 votes, but only 12 seats in Parliament. By contrast, the Liberal Party received 5,252,031 votes, or just over 3 times as many as the PCs, but received 172 seats, or over 14 times as many seats as the PCs. In terms of effective representation, each Progressive Conservative MP must effectively represent 130,583 voters, while each Liberal MP represents only 30,535 voters. In terms of individual voting power, this means that a single vote for the Liberals was worth over 4 times as much representation as a vote for the PCs.
The situation of supporters of smaller parties like the Green Party is even worse. In 2000, the Green Party gained the votes of 104,402 Canadians, but received no seats in Parliament. In the last general election in British Columbia, on May 16, 2001, the Green Party of British Columbia received 196,691 votes, or 12.4% of the total vote, but was denied any representation in the Legislative Assembly. As a result, those voters received no representation in Parliament, and hence, no opportunity to challenge the government directly on matters of importance to them.
Results such as these are not unusual in Canada’s history. Disparity in voting power, and the ineffective representation which it provides for the supporters of many parties, has occurred in every election in our history. Indeed, there are many elections at the federal and provincial level in which the party that won the greatest number of votes did not win the largest number of seats, and so lost the opportunity to govern. In the last two Quebec elections, for example, and in two of the last three in B.C., the Parti Quebecois and the NDP respectively formed the government, even though in both provinces the Liberal Party won the most votes.
How does Canada’s electoral system violate the right of equality?
Section 15 of the Charter protects the right of equality, or the right to be free from discrimination on a variety of grounds, including race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Winner Take All systems make it harder for women to get elected than election systems that are based on the principle of proportional representation. Most of the established democracies in the world use some variant of proportional representation and many of them have twice as many women legislators. In Canada, roughly one in five legislators is a woman. In countries which use a more proportional system, the percentage is generally twice as large, and even greater in some cases. In the Scandinavian countries and in Germany, for example, over 40% of their national assemblies are made up of women. When New Zealand switched to PR in 1996, the percentage of women in the house of representatives increased by almost 50%.
The Supreme Court has repeatedly said that a violation of equality happens not just when a law discriminates on its face, by making a distinction between black and white persons, for example, but also when it has the effect of putting a certain group of people at a disadvantage, and by so doing, demeans their dignity. That is exactly what happens under the Canada Elections Act.
Inhibiting the election of women to Canada’s Parliament makes it more difficult for women to be heard in the legislative process, and thereby ensures that laws will continue to be passed which do not respect their interests, and that policies which might be to their benefit, such as subsidized daycare and stronger at-home medical care, will continue to be ignored or valued less than they would be in a Parliament with more equal representation of women.
Even if the Canada Elections Act does violate rights, can it be justified?
Under section 1 of the Charter, governments may limit rights as long they can show that the limitation is justified. For example, a government might defend its policy or decision on the basis that there was no way to avoid limiting the rights, or that the good served by the limitation is more pressing and substantial than the interest protected by the right itself. This is often the case when the government must limit rights such as free expression or liberty in order to protect the equality or security rights of others.
In this case, the Winner Take All system cannot be justified for either of these reasons. First, there are a number of alternate systems which can be used to translate votes into representation. Most established democracies in fact have adopted some variant of proportional representation, and every one of these PR systems is an improvement on our own, in terms of ensuring that effective representation and parity of voting power are respected. In PR systems, all political parties get exactly the same percentage of seats in the legislature as their share of the popular vote. There is no disparity in voting power and the voices of all voters are represented in the legislative debate.
The disparities of voting power that are caused by Winner Take All systems are especially harmful in Canada because parties whose supporters are regionally concentrated do better than those whose appeal stretches across the country. For instance, in the last federal election the separatist Bloc Quebecois received 1,377, 727 votes in 2000, and received 38 seats. Each Bloc MP represents 36,256 voters, all of whom voted in Quebec. By contrast, the NDP received 1,093, 868 votes, but only received 13 seats. Remember also that the Progressive Conservative Party, which received 1,566,998 votes, got only 12 seats. Nor was this an unusual election. Since 1968, political scientists have observed this perverse, destabilizing effect of our system.
Not only have our election laws created Parliaments in which the regional divisions within the country are exaggerated and exacerbated, they can also distort the makeup of parties that aspire to national support. Since the Trudeau years and the National Energy Policy, western supporters of the Liberal Party have been radically underrepresented in the federal caucus and cabinet, as were Alliance supporters in Ontario in the last general election when even though they cast half as many votes as Liberals, they wound up with only 1/50 as many seats.
Are governments elected under SMP laws inherently more stable and more effective than those elected according to proportional representation?
It is sometimes said that SMP systems ensure that winning parties have large majorities, and that they thus avoid the instability and ineffectiveness of multi-party coalition governments that are very common in countries that use PR. This would be a valid concern, if it were supported by the evidence. In fact, almost every democratic country in the world, including some of the most stable and effective, uses some variant of PR. While Italy and Israel are often cited as counter-examples, their comparison to Canada is only valid to the extent that Canada resembles them in its political make-up. There is, in fact, much evidence to suggest that Canada is more like Germany, the Netherlands and Scandinavian countries, which have used some variety of a proportional electoral system for years and which are among the most stable and effective democracies in the world.
Moreover, the small number of so-called "unstable" democracies typically use systems which have special rules, such as a very low threshold, which allow many small, sometimes radical parties to receive representation in the legislature. Such rules obviously need not form a part of a more just election law in Canada, and so they cannot be used to defend the current system.
What evidence does the case rely on?
The case is based largely on affidavits given by Alan Cairns, arguably Canada’s most distinguished political scientist of the twentieth century, and Douglas Amy, a Professor of Political Science at Holyoke College in Massachusetts, who is one of the world’s foremost experts on election laws. In the affidavits, copies of which you can find elsewhere on this website, Professors Cairns and Amy provide detailed evidence of the disparities and inequalities of the Canada Elections Act and other SMP laws. They include extensive references to the major studies that have been undertaken on election systems all over the world.
Does the case require the judges to choose an electoral system for Canada?
No. Surveying the different electoral systems in use around the world, and choosing from among them the one most suited to Canada’s needs is not an uncomplicated task. It will require extensive research and public consultation. Beyond identifying ways in which our current system violates the constitution, the courts are ill-suited to make the choice of which of the alternatives is best. As a result, the claim asks only for a declaration that the present system is unconstitutional. What’s more, it suggests that the force of this declaration be suspended for 2 years, to give Parliament the opportunity to survey the options and, in consultation with the public, choose one which is best for the country. The Canadian people, rather than the judges, must drive this substantive policy debate, and ensure that justice is finally done.
Is this an issue that the courts should decide? Shouldn’t our elected representatives decide something like this?
The legal claim is exceedingly strong. The evidence and law on which it relies are virtually uncontested. Some have suggested, however, that the judges will be reluctant to act because of concerns about their legitimacy to make determinations which some might call ‘policy-making’. In the past, the Supreme Court has said that it will defer to the judgement of Parliament if it believes an issue of policy rather than law is at stake. Is this one of those times when deference is appropriate?
The answer must be no. While the choice of electoral system is an important matter, which requires the careful consideration of many competing claims, even the most cautious and conservative theories of judicial review recognize that governments cannot be left to make this choice unsupervised. The reason is obvious: the clearest beneficiaries of the inequities in the current system are those who are elected under it. The members of Canada’s legislature have a clear, personal interest at stake. Left to decide the issue themselves, they would effectively be ‘judges in their own cause’. This is why genuine electoral reform has never been seriously discussed in Canada’s elected branches of government. Indeed, when Brian Mulroney’s Conservative government set up the Lortie Commission on Electoral Reform in 1989, it specifically instructed the Commissioners not to study the issue of proportional representation. In other countries, serious examination of, and changes to the ways votes are translated into representation have occurred only in response to dramatic political upheavals (as in Eastern and Central Europe, South Africa, etc.), or as a result of incredible coincidence or serendipity and good luck (as in New Zealand).
Canadians have every reason to be cautious about judicial power to make policy under the Charter. But they should not forget that some of the brightest moments in Canadian representative politics have been the direct result of judicial interpretation and application of the law. In particular, Canadians should remember the fact that women were finally considered ‘persons’ under the law, and thus entitled to sit in all of its political institutions, as a result of the decision of the Judicial Committee of the Privy Council, then Canada’s highest court, in the celebrated Persons Case of 1930.
How long will it take for the courts to reach a decision?
The case was filed the Superior Court of Ontario on May 1, 2001. In the interests of time and money, the Minister of Justice, Anne McLellan, was asked to refer the case directly to the Supreme Court of Canada, but she declined to do so. As a result, the case will have to be argued before the Ontario Superior Court, and the Ontario Court of Appeal, before it can be finally decided by the Supreme Court. This process could take as long as four or five years.
Will a loss in court set back the project of electoral reform in Canada?
Some people worry that no matter how strong the legal argument, the case may fail, and if it does, that the cause of electoral reform could be set back for years. The concern is that those who favour the current system would be able to point to the judgment of Canada’s highest court and say that the status-quo has been found to be compatible with the constitution and so does not need to be changed.
There are no guarantees in law, as in life, but the likelihood that the case could end up doing more harm than good seems very remote. In the first place, if the case does not succeed, it is extremely likely that it will be because the judges are concerned that this is an issue that Parliament should decide, rather than because they view the Elections Act as fair and just. Second, the argument assumes that electoral reform will receive meaningful consideration, without judicial intervention, in the near future, when the history of election reform in Canada and elsewhere suggests the contrary. In the absence of judicial consideration of this subject, in order to kick-start reform efforts in Parliament, Canadians will likely have to wait for dramatic constitutional upheaval, such as a successful secession referendum in Quebec. Ironically, this is just the sort of upheaval which a more just electoral system, based on the principle of proportionality, might forestall.