Fighting First-Past-The-Post in Court: What Does Winning Look Like?

When Antony from Fair Voting BC first approached me about collaborating on this charter challenge I was intrigued, but hesitant. Would the courts really entertain a challenge that would take them into the politically charged territory of voting system reform? What does a win look like for our case?

In this post, I’d like to share some of the answers to that question, which led to the organization I run, Springtide, agreeing to collaborate with Fair Voting BC on this project.

The answer, I have come to learn, is that if a case can demonstrate that civil rights are being neglected or violated, and the courts acknowledge this, then they must intervene - whether the matter is political or not.

There are plenty of prior cases - ones involving language rights, minority representation, and the right to effective representation that demonstrate this.

Our case contends that first-past-the-post voting violates Canadians’ Charter rights, and we'll ask the court to order the federal government to adopt a voting system that respects those rights.

We don’t expect the courts to order the government to adopt a specific voting system to replace first-past-the-post - that’s not their role. A fair ruling, in our view, would have the courts clarify how first-past-the-post violates at least two Charter rights. It would then outline the principles a voting system would be required to meet in order to comply with the Charter.

A key principle the court should demand from the government is equality of voting power. We generally have equal access to voting opportunities, but the impact of a single vote is wildly unpredictable, and it doesn't have to be that way.

A fair voting system should ensure each voter sees their vote count towards the election of a Member of Parliament.

In the 2015 federal election, only 48% of voters helped elect a member of parliament. Meanwhile, in many countries with proportional representation, well over 90% of voters contribute to the election of their lawmakers.

So, the best case scenario is one where the court strikes down first-past-the-post, and orders the government to develop a new system that maximizes the number of voters who can impact election results.

Short of that, there are partial victories that may help the movement for voter rights in Canada. For instance - most of us who support proportional representation have been disappointed with how successive governments - federal and provincial - have handled questions of electoral reform. It’s often treated as a political football, a question of whether to be innovative or not, and speculation over which party certain reforms favour abounds. The most important considerations - how the system respects and enhances our civil rights, and how the system ultimately serves voters - are neglected.

A court ruling that lands short of our best-case-scenario could establish a legal framework that makes respect for Charter rights central to future government-led deliberations on electoral reform. Those debates might happen in special committees of federal and provincial legislatures, citizens assemblies, or in the design of referendum questions.

A ruling that falls short of our best-case-scenario could set the stage for a more fair, rights-based approach to electoral reform by governments across Canada.

Of course, we can only take our case to the court if we can afford to get there. That’s where you come in. Can you help us make sure this case makes it to court?

Support the Charter Challenge today with a one-time or monthly donation. All donations $25 and up are tax-deductible charitable contributions.

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Current Status:

- The case was filed with the Ontario Superior Court of Justice on October 2019.

- Served government with affidavit and evidence package in May 2021.

- Awaiting government affidavits.
 

How you can help

The main way you can help is to support the case financially. We need to raise another $35,000 to prepare for the next stage of the case - cross examination. You can support the case for as little as a dollar a month.

What to expect

- Summer to Fall 2021 - preparing for cross-examination and preparing response affidavits - $35,000 fundraising goal

- Fall 2021 to Winter 2022 - draft factum - $30,000 fundraising goal

- Winter 2022 - prepare and present oral arguments - $25,000 fundraising goal

- At each step, we set a goal based on our estimate of the costs, and ask supporters to contribute to help us reach that goal, and to ensure the case can continue to move forward.