Charter Challenge: September Update

Here's the latest update on the Charter Challenge for Fair Voting. 

In our last update to you we shared: 
- that we'd raised just under $43,000 to support the Charter Challenge for Fair Voting 
- that we would share another update once once we'd retained legal counsel for the case 

Here's where things are at now: 

There are a few key decisions that need to be made about the case before counsel is officially retained, but here is what we can share now: Antony Hodgson (from Fair Voting BC) and myself have been working closely with a pair of lawyers who are excited and passionate about taking the case. We're holding off on officially retaining them as we sort out two important decisions related to the case: 
- what province the case will be filed in, and
- who the applicant(s) for the case will be. 

Both of these questions are related and the decisions will affect the nature of our retainer agreement with legal counsel. 

Where to file: Any Charter Challenge must begin by first filing a claim in a provincial court. We intend to challenge the unfair nature of the federal first-past-the-post voting system, but in order to do so a claim must be filed in a provincial court. The claim will be against the Government of Canada, likely represented by the Attorney General, and an initial decision will be made in the provincial court where the case is filed. 

The provincial court will make a decision on this claim. If the decision is in our favour, we expect the Government lawyers to appeal, which will be heard in another provincial court. If the decision is not in our favour, our lawyers will appeal. Another decision will be reached, and at that point final appeal will go to the Supreme Court (should they choose to grant it leave). 

Each province has its own court system, and it's own processes associated with it. The costs associated with filing in one province versus another can vary wildly, so choosing the right province is critical to containing the costs to our budget. 

The Applicant(s): 
A claim must be made by one or more applicants. In our case, the applicant(s) will be non-profit organizations. Each applicant must also have standing to file such a case. To have standing, the applicant must be have operations, or services in the province the case will be filed in. And in the case of our Charter Challenge, they must also have a demonstrable history and interest in the case being filed. In addition to this, the organization must also be comfortable with the risks associated with being a named applicant on the case (namely, being assigned costs by the court). 

The balancing act: Before moving ahead with the case, we want to ensure that we're doing so under the optimal conditions. To ensure the case is set up for success, we want to ensure we've selected the right province, and the right applicant(s), and that all organizations involved are prepared for what follows. 

As anyone who has embarked on multi-organization partnerships in the past knows, it's important to resolve key responsibilities and details upfront, rather than rushing ahead without clear expectations. 

The work continues: Whichever applicant(s) and province we choose to move the case forward, the line of argumentation behind the case remains the same: each Canadian's right to effective representation is violated by the first-past-the-post voting system. The work involved in preparing the legal arguments supporting this claim continues we strike the right balance of 'who' and 'where' before we officially retain counsel. 

Follow along: To continue building awareness about the case, and to keep those interested in following along more closely in the loop, we'll be sharing our progress and findings on this blog. Throughout September we will be sharing regular blog updates. These will include posts that shine a light on some of the reference-cases ours is based on, some of the leading thinking by scholars studying constitutional law and electoral reform, and other posts sparked by the work we're doing on the Charter Challenge for Fair Voting.  

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Stay tuned to this blog for updates on electoral reform and the Charter Challenge for Fair Voting.

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Current Status:

- In early August of 2019, we raised enough support ($70,000) to cover the costs of preparing a court application and securing expert testimony for our case.

- The case is being filed with the Ontario Superior Court of Justice on October 9th, 2019

How you can help

The main way you can help is to support the case financially. We need to raise another $150,000 to cover the costs associated with arguing the case at two levels of provincial court, and to file an application for leave with the Supreme Court of Canada. You can make a tax-deductible donation here.

What to expect

- Once filed, the case will be heard in a provincial court.

- Following an initial decision, there will be an appeal heard in another court. If the initial decision is in our favour, the Government of Canada will likely appeal it. If the decision is not in our favour, we will appeal it.

- Finally, the case may be heard by the Supreme Court. If the decision of the appeal court is in our favour, we suspect the Government will request leave from the Supreme Court. If the decision of the appeal court is in the government's favour, we will request leave from the Supreme Court to hear the case. If the case is heard in the Supreme Court of Canada, the decision will be final. If the case isn’t granted leave to be heard in the Supreme Court, the decision of the appeal court will be final.

Time and Money

We estimate the total costs for arguing and overseeing this case to be in the range of $300,000 - $350,000, spread out over the course of 2 - 4 years.

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