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.

FPTP Provides Poor Legislative Representation to Many Voters

The central argument in our Challenge is that half the voters are not effectively represented in Parliament, in violation of our rights under Section 15 of the Charter. The Judge made three significant findings of fact that strongly support this argument:

1. Reduced Voices: First, he found that voters represented by an MP “from a party that they oppose” have “reduced voter voice[s]”. As one of our affiants (Patrick Boyer, a former Progressive Conservative MP and legal scholar) testified, under First Past the Post (FPTP), MPs fail to provide any “political representation” (i.e., “legislative” representation) to voters of their constituency who have different political affiliations. These voters have “significantly reduced voices in government” compared to those with a politically aligned MP. Their policy and legislative preferences are neither voiced by their MPs, who have in Canada increasingly voted along partisan lines, nor are they reflected in committee deliberations or Parliamentary votes. The experts also agreed that “surrogate representation” (whereby an MP elected elsewhere shares a particular voter’s views) is “not a substitute” for direct representation, because voters have no control over surrogates.

2. Uneven and Unfair Representation: Second, the judge concluded that SMP’s “disproportional translation of votes to seats in Parliament” inflates the value of votes for “mainstream or regionally strong parties… by design” at the expense of votes for “smaller parties”. The Judge found it “undeniable” that voters with “unequal voting power” will have “uneven and unfair representation”. The distorted translation of votes to seats has led to a “legion” of “flaw[ed] and… anomalous results”, including examples where a party steadily lost vote share over multiple elections and yet started in opposition and ended up with a majority government, where the party that came 4th in terms of the popular vote became the Official Opposition, and numerous elections where the party that won the most votes did not win the most seats. The judge cited expert witness Prof. John Carey, who noted that these outcomes “clearly violate the principle that all votes should count equally” and thus, as the judge noted, “work an unfairness on some voters”.

3. Violations of Principle of "Majority Rule": Third, the judge concluded that the significant disproportionalities generated by FPTP lead “to uses of power by a plurality of voters that is far from a majority”. Indeed, in the last 60 years, a party has had majority power two-thirds of the time but has only once received over 50% of the vote (and that one time, it was only 50.03%!). In other words, FPTP routinely leads to significant violations of the principle of majority rule.

In later messages, we'll explain why we feel the judge failed to draw the correct legal conclusions from these established facts, but in the next couple of emails, we'll share a few more key "findings of fact" that support our case.