A Charter challenge on electoral reform coming up?

Sara Golling
By Sara Golling
May 8th, 2017

Before the last federal election, Liberal party leader (now Prime Minister) Justin Trudeau repeatedly promised voters that Canada would not have another election under the “first-past-the-post” electoral system.

If we had only two political parties and no gerrymandering, that system would work perfectly well.  But with more than two parties vying for seats in Parliament, our current system means that a party with considerably less than a majority of the votes cast can — and usually does — end up with a majority of the seats in Parliament and full power over what the government does. We had some public outcry about the fact that the previous federal government under Conservative Stephen Harper had 100% of the power with only 39.7% of the popular vote; our current Liberal government under Justin Trudeau gained 100% of the power with even less: 39.5% of the popular vote.

Trudeau’s government did do a certain amount of work on investigating electoral reform ― but, according to those who attended the town hall meetings and collated the results, Trudeau dropped the whole issue when it appeared that “the people” favoured an electoral system that would not especially favour the Liberal Party. Trudeau announced that electoral reform will not happen because there is not enough support for it. Those who voted for Trudeau’s party partly on the basis of the enticement of electoral reform feel betrayed.

Some feel so betrayed that they are mounting a Charter challenge to the constitutionality of the “first-past-the-post” electoral system. Fair Vote Canada, a non-partisan organization dedicated to electoral reform for a voting system in which all votes count, is planning that legal challenge.   

The Charter, they say, “guarantees our right to vote and our right to equal treatment.” 

The group acknowledges that a legal challenge has been tried in the past, and failed.  The message announcing the initiative says:

“This is not the first attempt at a challenge of this sort. Fair Vote Canada was an intervenor in the Daoust case, which made similar arguments, in 2007. The Charter Challenge website acknowledges that the Daoust case was rejected both in the initial hearing and by all three judges at the Quebec Court of Appeal. It might have added that we tried to appeal to the Supreme Court of Canada, but the Supreme Court denied our application for leave to appeal. However, there were a lot of lessons learned from this experience.

“We believe that further work is needed to assert the fundamental right of citizens to have equal and effective votes as a value enshrined in our Charter. We are inspired by the words of Chief Justice of the Supreme Court, Beverly McLaughlin, that

Justice is never done, never fully achieved. Each decade, each year, each month and indeed each day, brings new challenges. The most advanced justice system in the world is a failure if it does not bring justice to the people it serves. But a constitution is more than a contract. It is a reflection of a nation’s most fundamental values. And as a nation’s values and expectations change over time, so its constitution is applied in a way that reflects those changes. (address to the Empire Club, 2007).

“The potential benefit of this initiative is that the courts might agree, this time, to help our country become what we profess to be: a country in which every citizen is equal and deserving of representation in our legislatures; a democracy that truly reflects the diversity of Canadian views.”

Fair Vote Canada is encouraged by another statement by Chief Justice Beverley McLachlin, in an earlier case on electoral district boundaries in Saskatchewan, quoted in their message:

“Each citizen is entitled to be represented in government. Representation comprehends the idea of having a voice in the deliberations of government”.

These words, they hope, mean that a different approach in a new case will receive at least a hearing at the Supreme Court of Canada, and that this time their arguments may prevail over the status quo.

To learn more about their plan, go to https://charterchallenge.ca/ .

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