Over the past month or so, we've shared with you what the judge made of the evidence we presented in the Charter Challenge and laid out various objections we have related to his findings.

Starting today, we shift our attention to the legal arguments that we've made, and start discussing the various ways we feel that the judge "fell into error" in considering our case so that you'll have a better sense of what we're hoping to prove when we appear at the appeal in November.

From Aug 10: In our last few messages, we've been sharing with you the key findings the judge made in our first hearing about how First-Past-the-Post (FPTP). Today, we present the last main group of findings - how FPTP discriminates against minority groups.

From Aug 5: In our last message, we shared with you the key findings from our first hearing about how First-Past-the-Post (FPTP) leads to under-representation of women, which is a core part of our argument that FPTP violates our Section 15 right to equality.

In our last few messages, we've been sharing with you the key "findings of fact" that the judge made in our original challenge last fall. We've previously covered those that relate to reduced effectiveness of representation and impaired participation. Today, we outline the judge's findings related to under-representing women, which is a core part of our argument that First-Past-the-Post (FPTP) violates our Section 15 right to equality.

From July 14, 2024:

In last week's email, we shared with you the key "findings of fact" that the judge made in our original challenge last fall that support our claim that our current First-Past-the-Post (FPTP) system provides poor legislative representation to many voters - the core of our "Section 3" argument. Our key point is that many voters (now routinely more than half) don't have "effective representation" because they have not voted for the MP in their riding, and "their" MP actively works against their political interests.

This week, we review the judge's second main set of findings - that FPTP impairs many voters' right to meaningful participation (a second key component of our Section 3 "right to vote").

From July 8, 2024:

When we appeared in the Superior Court of Ontario last September to present our Charter Challenge for Fair Voting, we presented hundreds of pages of affidavits and other written evidence.

One of the most important tasks for the judge in this first hearing was to make "findings of fact" - i.e., to decide what facts were established by the evidence and should therefore be relied on in deciding the legal issues in our case.

This step is especially important because, with few exceptions, these findings can't be easily challenged or re-litigated on appeal. Today, then, we'll share with you some of the key findings, as summarized by our lawyer (Nicolas Rouleau) in our appeal factum.

From Jul 1, 2024:

We hope you're enjoying the Canada Day weekend. In our last email, we outlined the broad strokes of our appeal in the Charter Challenge for Fair Voting. In short, while we feel that the judge at our initial hearing (Justice Ed Morgan) made several key findings of fact that strongly support our argument, we also believe that he "fell into error" by not drawing the appropriate legal implications from these findings.

In this update, and others to follow in the coming weeks, we'll share some more specific arguments we're making in our appeal.

From Jun 2, 2024: As we announced in an earlier update, we've recently filed our appeal in the Charter Challenge for Fair Voting. In our initial appearance last fall in the Ontario Superior Court, we argued that our current First-Past-the-Post voting system violates our Charter rights to effective representation and meaningful participation, and discriminates against women, visible minorities, and other minority groups.

(from May 30, 2024): Good news! We've just heard from our lawyer, Nicolas Rouleau, that the Appeal Court for Ontario has announced a tentative date for hearing our appeal in the Charter Challenge - it's currently booked for this fall, on Tuesday, November 5th in Toronto.

As we shared with you in our last message, we’ve now submitted all our written arguments for the upcoming Charter Challenge court hearing (Sep 25-27 in Toronto).  We’re currently waiting to receive the government’s written argument and are now working on our oral arguments.

In the meantime, we wanted to share with you a few more details from Fair Voting BC’s affidavit, which presents some insightful metrics we’re using to reinforce a number of our key arguments.  

In a previous message, we reported that over half the voters in the 2019 election cast “wasted votes” (votes that didn’t help elect an MP). While this was true in that election, the court will want to know if this is a consistent pattern across time, and if changing the voting system will likely change this.

To answer this question, we defined a Representation Metric that could be calculated both for countries such as Canada that use the First Past the Post voting system and for countries that use proportional voting.

More Than Half the Votes Are Wasted in Canadian Elections

In Canada, the Representation Metric is simply the proportion of voters who cast a vote for an elected candidate. Thanks to work by Byron Weber Becker (University of Waterloo), we were able to show that for nearly the past hundred years (since 1935) the Representation Metric has averaged less than 50% over the past 40 years.

Representation Metric for all federal elections in Canada since Confederation. The Representation Metric expresses the percentage of voters who have voted for an elected MP. Since 1984, the Representation Metric has averaged just 49.8%.

Are As Many Votes Wasted Under Proportional Voting?

Absolutely not.  In Proportional Representation (PR) voting systems, the Representation Metric is typically much higher (and the “wasted votes” much lower), because far higher proportions of the ballots cast affect the resulting makeup of the legislature. To demonstrate this point, we analyzed the results of recent elections in three countries using different types of PR systems (Norway (List PR), New Zealand (MMP), and Ireland (STV)).  Under all three of these systems, the Representation Metric would have been far higher, ranging from about 77-79% under Ireland’s ‘direct representation’ STV system up to as high as 94-95% under Norway’s List Proportional Representation system.

Representation Metrics for Canada (2019 federal election) and two recent elections in each of three selected countries using proportional voting (to demonstrate consistency of findings). The darker shade represents those voters who are represented by a representative for whom they have explicitly voted (‘direct’ representation), while the lighter shade represents those voters who are represented by a representative who won a seat by virtue of votes cast for the representative’s party (‘indirect’ representation).

This evidence is critical for us to make the points that (1) our recent experience in Canada is not an anomaly, but rather a routine and expected outcome of elections under FPTP, and (2) any number of alternative voting systems would markedly increase the proportion of represented voters.

Charter Challenge In the News

The Charter Challenge is in the news! Maxwell Cameron, a professor in the Department of Political Science and the School of Public Policy and Global Affairs at the University of British Columbia, contributed an opinion piece to The Globe and Mail titled “The Charter challenge of first-past-the-post could lead to a better electoral system.” To read the piece, click here. 

Thank you so much for your continued support. More details shortly!

Jesse Hitchcock, Springtide & Antony Hodgson, Fair Voting BC