A Brief History of Democracy

Thursday, December 30, 2010

The Crux of the Matter

Is a nation that uses a plurality/winner-take-all electoral system to determine representation in its legislature democratic? This is the crux of the matter before the courts.

At the most fundamental level, democracy is the rule of the majority, and a plurality is not a majority. Duly-elected governments using a plurality voting method may have many virtues, but they rarely produce a government that has the support of the majority of its citizens. Therefore, only in rare instances are they democratic.

In Canada, section 3 of the Charter of Rights and Freedoms guarantees that each citizen has the right to effective representation and to participate meaningfully in the electoral process. These are substantive rights that go beyond the right to place a vote into a ballot box. Moreover, judgements concerning the application of above-mentioned rights must conform to the values of a free and democratic society.

Upon application of the plurality voting method, the candidate who gets the most votes wins, and all other votes beyond what is necessary to establish the plurality are simply discarded. Most often, these ineffective votes comprise the majority of votes cast in the electoral district.

Consequently, the plurality method is not democratically legitimate. It lacks a mechanism that can take the discarded votes and make them effective. Generally speaking, there are two types of mechanisms in use to counter the problem: an aggregation of votes across electoral districts and a redistribution of seats based on the aggregation or a compilation of voting preferences within electoral districts in order to establish which candidate has the support of the majority of electors.

It is the addition of these mechanisms to the simple procedure of counting the initial votes cast for each candidate in every electoral district that produces a democratically legitimate electoral result. It is the absence of any such mechanism that renders the plurality method democratically illegitimate.

Importantly, the motion before the Courts has as its objective to obtain a judgement that declares the plurality method democratically illegitimate and as a result constitutionally null and void. It does not ask the Court to provide the remedy. There are a number of voting methods available from both the proportional and majoritarian categories that can restore democratic legitimacy to our electoral process. The Court may give guidance with regard to how the right to effective representation and meaningful participation in the electoral process must be respected, but the choice of which voting system will replace the plurality method will rest with the legislature.

We anticipate that the Quebec government will be given one year to comply with the decision, which promises to finally bring about a political debate concerning the voting system that must lead to a substantive result. As well, we anticipate that similar motions would be filed elsewhere in Canada.

Tuesday, December 21, 2010

Contesting the Democratic Legitimacy and the Political Authority of the Quebec and Federal Governments

Two recent events cast serious doubts about the democratic legitimacy of our political institutions and call into question the nature of the political authority they wield.

In Quebec, the Charest government refuses to hold a public inquiry against the wishes of the vast majority of the population into the corruption within the construction industry and its ties to the financing of Quebec's political parties. At the federal level, the unelected Canadian Senate voted down the comprehensive climate change legislation passed by the majority of members of the elected lower house.

Indeed, this turn of events in Quebec demonstrates that the majority of citizens do not hold and exercise political power in Quebec and that the same can be said of the majority of the elected representatives in Parliament.

What does this say about our political institutions?

At a fundamental level, Canada's constitutional monarchy is undemocratic and its political authority is derived from a show of force rather than from the will of the majority of its citizens. Popular elections are held, but they do not yield electoral results that reflect the popular will. On the contrary, the electoral system is designed to usurp the power of the majority and transfer it to a minority. In between elections, there is little that can be done to change this state of affairs.

How does this come about?

In short, our electoral system uses the single member plurality (SMP) voting method that brings about a system of governance in which the most powerful political minority rules as if were a majority.

As could be expected, this electoral system was conceived during the Middle Ages, an epoch that privileged those who exerted territorial control and little attention was paid to those who lived and toiled upon the land. Essentially, the SMP method reproduces this feudal relationship with regard to political power.

For instance, in the Middle Ages military force established who gained control over disputed territory, and to the winner went the spoils of victory. Similarly, in our electoral system, the spoils of victory, effective representation, go to the winner of the electoral campaign in a winner-take-all manner.

It doesn't matter if the majority of citizens/serfs in the territory/electoral district voted against the the candidate who garnered the most votes. Their voices do not matter and all their votes are discarded as if they were not cast at all. Regardless of the total lack of democratic legitimacy in the process, the newly elected deputy takes his or her place as the territorial representative in Parliament.

The primacy of territorial control is then leveraged to form a ruling government. Again, the formation of the government is not bound by the manner in which the citizens/serfs actually voted. The vast majority of Deputies in the House of Commons do not have the support of the majority of their constituents. All that matters is to identify the political party that acquired the most territory as expressed by the number of electoral districts captured in the electoral campaign. To the winner goes the right to rule the land.

As you could imagine, using an electoral method that actually discards what is most often the majority of votes cast by the citizens/serfs compromises the democratic legitimacy of the government that is duly formed. Beyond the recurrent over and under representation of the different political parties in Parliament, there exists a fundamental flaw: the formation of what is misleadingly referred to as a majority government does not require the support of the majority of the electorate. In fact, it is rare that a majority government even has the support of the majority of the citizens that cast their votes, let alone those who are eligible to vote.

Needless to say, this becomes problematic, especially in terms of how political authority is exercised. In a democracy, as a matter of principle the citizenry is bound to accept the will of the majority as long as fundamental human rights are respected. What is the guarantor of respect for political authority if it does not stem from directly from the people but instead is obtained from a democratically flawed process? Tradition? Coercion?

Personally, I find it unacceptable that such a state of affairs is allowed to continue under the guise of democracy. So much so, in collaboration with three of my colleagues, we decided to challenge the democratic legitimacy of the electoral system that brings forward in our eyes a system of government that can only be described as rule of the few over the many.

What allows for this challenge is the adoption in 1982 of Canada's Charter of Rights and Freedoms. In particular, section 3 of the Charter guarantees the right to vote. As defined by the Supreme Court of Canada, this right goes beyond simply the right to place a ballot into a box and includes the right of each citizen to effective representation and the right of each citizen to participate meaningfully in the electoral process and that these rights are not subject to the political preferences of the majority.

Perhaps, the majority of Canadians prefer to maintain the present system, but this preference does not give them the right to deny effective representation to a significant minority of voters. For example, in the last federal election approximately a million people voted for the Green Party, yet these electors have no effective voice in Parliament. How can this be squared with the right of each citizen to have effective representation? It cannot.

Similarly, where is the substantive equality in an electoral process that confers effective representation only on those electors whose votes establish a candidate's plurality at the expense of all other electors? This means that the system gives strong institutional incentives to people to vote for political parties that are in a position to potentially form a government at the expense of those parties that are not. Consequently, many electors who would otherwise vote for a smaller party if there vote would be used to establish representation don't vote at all or choose to vote strategically by substituting their authentic choice for a strategic vote. In either case, this situation systemically reduces the number of votes a candidate from a small party would otherwise receive, a situation already judged to be antithetical by the Supreme Court of Canada to the values informing a free and democratic society.

At the heart of the issue is whether the electoral system that we inherited from our colonial past conforms to the values of a free and democratic society. Even the British have their doubts as demonstrated by the holding of a nation-wide referendum in the UK on the continued use of their archaic first-past-the-post voting method in May, 2011.

At the very least, both at the provincial and federal, electoral systems must incorporate some mechanism that enables each citizen's vote or preferences to be aggregated so each vote is used in the formula that determines representation and no votes are simply discarded. This would restore democratic legitimacy to our system of governance.

On February 8, 2011, at the Quebec Court of Appeal in Montreal, arguments will be heard to overturn the decision at the lower court that did not support the motion to have our present voting method rendered null and void. With lawyers of the stature of Julius Grey and Peter Rosenthal, both having successfully obtained seminal decisions on democratic rights issues from the Supreme Court of Canada, this promises to be a historic confrontation between the desire to maintain our colonial past and the desire to evolve into a modern democratic society.

Monday, November 22, 2010

Le Québec pourrait devenir le berceau de la démocratie en Amérique du Nord

En Chine, les mots « crise » et « opportunité » s’écrivent de la même manière. Il semble que le fait d’être en période de crise ou en période d’opportunité dépende de l’interprétation des événements.

Chose certaine, nos institutions politiques québécoises sont régulièrement ébranlées par les scandales.  Dans un sondage effectué dernièrement par Angus Reid – La Presse, trois Québécois sur quatre croient que les institutions québécoises sont corrompues.

Nous ne sommes pas les seuls à subir de gros problèmes de  gouvernance.  Aux États-Unis, un échec du système politique a eu pour effet de plonger le monde dans une récession globale due à l’absence de régulation adéquate de leurs marchés financiers.  Au Canada, le premier ministre a du demandé au gouverneur général afin de proroger le parlement pour éviter le renversement de son gouvernement. Quant au Royaume-Uni, un scandale concernant l’utilisation frauduleuse des fonds publics par certains membres de la Chambre des Lords a eu pour effet une révision du système électoral. Grosso modo ces pays d’origine britannique sont aussi secoués par des crises de confiance envers leurs institutions politiques.

Dans chaque cas, les désirs de la majorité sont opposés à la volonté d’une minorité forte, fortunée et efficace, ce qui contribue à remettre en question la légitimé du système de gouvernance. Au fond, ces pays bafouent le qualificatif « démocratique » apposé à leur régime politique, c.-à-d. la majorité des citoyens exerce le pouvoir politique par le biais de la représentation élue.  

Au contraire, le système électoral britannique ne vise pas à faire respecter la volonté populaire aux élections puisqu’il transfert le pouvoir de la majorité à une oligarchie menée par des politiciens de carrière.

Cette situation autorise implicitement le premier ministre du Québec de refuser carrément de tenir une enquête publique sur les liens du domaine de la construction, le financement des partis politiques et le crime organisé.

La réponse appropriée de la part de la population québécoise est de faire ce que la classe politique a refusé de faire depuis le départ de René Levesque, soit la démocratisation des institutions politiques.  En effet, le monde est devenu trop complexe pour qu’une société soit dirigée par seulement « deux mains sur le volant », et comme nous pouvons le constater, le processus qui nous a mené là est truffé de corruption, collusion et copinage.

L’opportunité qui se présente aux Québécois découle du fait que notre système électoral est complètement en panne.  Insatisfait des efforts de notre Directeur général des élections du Québec (DGÉQ), Marcel Blanchet, de redessiner une carte électorale plausible et juste, le premier ministre Jean Charest a décidé de suspendre les pouvoirs du DGÉQ.  Par conséquent, le Québec n’a pas un système électoral en vigueur qui respecte ses lois propres.

Au début de l’année prochaine, les membres de l’Assemblée nationale devront trancher sur une façon de sortir de l’impasse quant à la carte électorale, rendue caduque à cause des changements démographiques. Au lieu de privilégier la continuité avec notre passé, en instaurant un système politique qui est conçu pour contourner la volonté populaire, le temps est arrivé pour le Québec d’être en rupture avec son passé colonial, et ce système qui est un vestige de l’Empire britannique.

Les Québécois doivent exiger que leurs politiciens instaurent un système électoral démocratique. Il faut commencer à la base de notre société et ses institutions politiques pour construire une société où chaque personne est égale devant la loi et ses applications.  Après tout, c’est le Québec qui a donné au Canada ses lois au niveau des limites des dons aux partis politiques afin de baisser influence indue de l’argent au processus électoral.

Le temps est propice pour que le Québec fasse quelque chose d’extraordinaire en devenant le premier état en Amérique du Nord à choisir la démocratie réelle et vivante comme principe prépondérant quant à son organisation et fonctionnement.       

Tuesday, November 16, 2010

That's What You Don't Get Mr. Charest: We Know that We Don't Live in a Democracy

Faced with the unprecedented appearance of an on-line petition that demands his resignation as Premier of Quebec, which has attracted more than 100,000 signatures in less than 48 hours, Jean Charest tried to minimize the turn of events by saying that we live in a democracy and that it is normal for people to disagree.

The guy just doesn't get it. He thinks that because he won an election that uses a medieval electoral system that allows him to form a majority government with the support of less than 25% of the electorate that this gives him the divine right to rule with democratic legitimacy to boot.

In reality, the vast majority of the population wants a public inquiry into the construction industry and its ties to organized crime and the finances of Quebec's political parties. Charest is steadfast in his refusal. He tells us that we should content ourselves with a police investigation, and we've had enough.

The petition puts it on the line. Respect the desire of the majority and give us what we want or find yourself another job.

What is in play is the nature of our political institutions. The question is clear. Do we live in a democracy where the majority hold and exercise political power or are we governed by an oligarchy headed by a professional politician? In this instance, the dispute concerns the basic distribution of power in a society: who governs on whose behalf.

In his efforts to frame this dispute within a democratic framework, Charest engages in the big lie. He tries to pass off the present form of governance as being democratic. In fact, it is the desire of the people for democratic rule that brings them into conflict with the oligarchy. Something will have to give. It will be interesting to see how this fundamental clash of power will be resolved.

In the meantime, I invite you to become acquainted with the thoughts of John Dunn, one of the world's leading democratic theorists.

Sunday, November 14, 2010

Democracy groups take aim at Canada’s electoral system

Reprinted from the Toronto Star.

November 13, 2010

Joanna Smith

OTTAWA—Democracy groups who have long complained about the way Canada unfairly favours the major political parties now hope that reviving a court challenge will force — or shame — governments into overhauling the electoral system.

“Our voting system creates a large risk of the most anti-democratic of all outcomes, which is a majority government that got the minority of public votes,” said Green Leader Elizabeth May. May was granted the right to intervene in a case before the Quebec Court of Appeal that argues the current electoral system in that province violates the Canadian Charter of Rights and Freedoms.

The voting system used to elect representatives at all levels of government nationwide is known as “first past the post,” which means that whoever receives the highest number of votes in a particular riding wins the seat and all other ballots cast for other candidates are essentially discounted.

Given that it is the party with the highest number of seats — not the largest share of the popular vote — that forms the government, this winner-takes-all approach to electing individual legislators is often criticized for overrepresenting established or regional parties at the expense of smaller ones.

That leads to results like the Green party winning no seats in the last federal election despite having 937,613 votes, whereas the Bloc Québécois got 49 seats with 1.4 million votes.

A Quebec group called the Association pour la revendication des droits démocratiques took the complaint a big step further by arguing before the provincial Superior Court that first-past-the-post violates the constitutional rights of those who cast their votes for the losing candidates because they are not reflected in the final results.

The Charter of Rights – both the Canadian and the one for Quebec – guarantees everyone of age the right to vote, but the plaintiffs argued that first-past-the-post violates those rights by rendering so many votes meaningless.

The plaintiffs asked the court to declare the system unconstitutional and then give the Quebec government some time to develop some unspecified new way to vote that would better provide citizens with proportional representation.

The Superior Court judge rejected the request to rule on the electoral system in 2009, arguing Charter rights had not been violated and, in any case, the question was essentially political.

The provincial appeals court has agreed to hear arguments in February.

Those involved believe a favourable ruling would pave the way to overhauling the system, but acknowledge it would be only the first step.

“The application does not ask the court to tell the government what to do,” said John Deverell, a member of the national council at Fair Vote Canada, which has also been granted intervener status in the case. “It asks the court to tell the government it can’t keep doing what it’s doing now.”

May believes it would then be best for the government to hold public consultations, such as the Royal Commission that New Zealand held on its road to proportional representation, and then perhaps put the question to voters in a referendum.

Constitutional scholar Peter Russell agrees with that approach, saying that more than a court ruling would be needed to bring legitimacy to a new system.

“I don’t think the court should actually fix it and mandate a new electoral system,” said Russell, a professor emeritus at the University of Toronto. “I really think that has to be done politically, but what a court could do is provide a kind of wake-up call decision to say that the guarantee that every citizen has the right to vote in federal and provincial elections is greatly diminished when so many citizens’ votes count for so very little.”

Monday, November 8, 2010

The Dream Team Is Now in Place

Today was a great day. By granting intervener status to Elizabeth May and Fair Vote Canada, the judge has given Peter Rosenthal the opportunity to present his written arguments on behalf of the two parties. Moreover, Peter will also have the opportunity to address his oral arguments to the panel of three judges that will hear our appeal.

With Julius Grey representing us, we have someone who obtained a landmark decision from the Supreme Court in an important democratic rights case (Libman). Likewise, Peter obtained a game changing decision from the same court that has become the foundation of our case (Figueroa). It would be difficult to imagine a more competent legal team to argue what could be a historic case.

Previously, electoral system experts Denis Pilon and Henry Milner gave expert witness testimony that clearly demonstrates the inadequacy of the first-past-the-post (FPTP)system. Add to that, the expert testimony of mathematician Stephane Rouillon who showed how from an objective measurement framework, Quebec's use of FPTP has led to some of the worst distortions of the popular vote in the developed world.

Finally, the manner in which the political context has changed over the last two years, a scandal concerning political partisanship in the nomination of judges and the Premier's suspension of the powers of Quebec's Director General of Elections, gives us an additional moral force in presenting our motion to have the system that allows for such abuse of political power to be declared unconstitutional.

If this is case is winnable, and there is just one way to find out, we now have everything in place to obtain a favorable decision.

Friday, November 5, 2010

Quebec's Smaller Parties Unite to Oppose the Despot

An improbable coalition came together in Quebec's National Assembly to oppose the adoption of the legislature introduced by the Quebec Liberals that would suspend the powers of the Director General of Elections. Members of the right of center Democratic Action Party of Quebec joined with the single deputy from the left wing Solidarity Quebec and two independents to denounce the actions of the Charest government and to demand that a proportional voting system be adopted as had been promised by the Liberals.

As could be expected, the Minister responsible for the file played to the plight of the voters in the outlying regions and accused the coalition of committing treason towards these regions. Extremely harsh words but we need to remember that there is a by-election at the end of the month in one of the ridings that is set to disappear from the electoral map proposed by the Director General of Elections.

What will be interesting to see is how the opposition party, the Parti Quebecois, will react. They have a good chance to win the seat that is now being contested. However, it was Rene Levesque, the spiritual founder of the party, that brought forward the legislation to create the institution of the Director General of Elections in order to put to an end the practice of political parties gerrymandering the electoral map. To support the Liberals motion would be, in effect, a rebuke of the Levesque heritage.

It remains to be seen if the legislation will be adopted, and if so will it be simply a majority vote with support from only the Liberals. In this case, considering that the Liberals owe their majority government to the systemic discrimination inherent to the first-past-the-post voting method. -- in reality, they have the support of less than one of four eligible voters -- the suspension of the Director General of Election's powers is a jest fitting a banana republic.

In any case, this is a very interesting political context that has developed as we head to the Quebec Appeal Court to ask that the present voting system be declared null and void.

Wednesday, November 3, 2010

Charest Holds Quebec's Regional Voters Hostage

The primary reason to get rid of the first-past-the-post voting system is that it is fundamentally unfair. Only the votes that give the winning candidate the number of votes necessary to edge past his or her nearest rival are significant with regard to representation. All other votes, including the votes cast for the winning candidate over and above what is required to declare victory, have no impact whatsoever on the composition of the legislature. As a result, most of the votes are wasted.

Even a child can understand that there is something fundamentally unfair with an electoral process that denies effective representation to the majority of voters by allowing the winner of the electoral contest to take the seat with less than 50% of the vote. How is it that someone can claim victory when the majority of electors voted against his or her candidacy?

Multiply this method across a large number of electoral districts and some serious distortions of the popular vote will occur: a party with less than 50% of the popular vote gets more 50% of the seats and forms a majority government, other parties receive less seats than their share of the popular vote warrants, smaller parties get no seats, and occasionally the party that came in second with regard to the popular vote goes on to form a majority government.

Notwithstanding this argument, there is a second reason to change the voting system here in Quebec. In short, the changing distribution of the population in Quebec -- there is a exodus from the outlying regions to the urban sprawl around Montreal -- means that to maintain the same number of ridings in the periphery without adding a significant number of seats to the electoral map will violate the principle of the equality of votes. In other words, the weight of a vote cast in a large sparsely populated riding can be two or three times the weight of a vote cast in an urban riding.

This dilemma can be avoided entirely by abandoning the exclusive use of single member districts. Once multimember districts are introduced those living in regions where the population is in decline can be compensated by having their votes used in electing representatives from a large multimember district. This is the case in the proposed mixed member model for Quebec that reduces the number of single member districts from 125 to 75 and uses the remaining 50 seats form a single multimember district in which all the votes cast in the province will be used to distribute the seats proportionally amongst the political parties.

This is a simple and elegant solution to the problem; however, there is a catch. Majority governments will become much more rare and, as a result, the quid pro quo between a political party and its financial contributors will be difficult to maintain. Simply put, without the ability of making good on promised interventions into the market, political parties will be less apt to attract donations from the business sector. For political parties that have a considerable advantage because they can outspend their opponents during electoral campaigns, this is not an attractive scenario. So, as is the case with the Quebec Liberal Party, the use of multimember districts must be avoided at all costs.

In fact, what Jean Charest is doing in Quebec is to play off the plight of those living in the outlying regions against the democratic principle of voter parity. For instance, given the constitutional limits with regard to undue dilution of the vote (the number of voters in a riding shall be no more, or no less than a 25% deviation from the provincial average unless there are exceptional circumstances), Quebec's Director General of Elections (DGE) made the reasonable choice by transferring three ridings away from the less populated regions and placed them where the population warrants. However, Charest is trying to pass himself off as the protector of the regions when unilaterally suspending Quebec's electoral laws and throwing out the DGE's proposed electoral map without having obtained the approbation of the legislature.

He hinted that when he finally introduces a new law that the number of seats would be increased, but the public has yet to be told that for those ridings in the outlying regions to remain, the average number of electors per riding must drop considerably so that the contested ridings remain within the 25% deviation limit. To do so, it will be necessary to add 26 additional ridings to the existing 125 seats for the redrawing of the electoral map at hand, with more seats to be added to the electoral map in the future as the demographic trends in Quebec continue.

Essentially, Charest is prepared to go through with this ill advised process so that he can save the first-past-the-past method and preserve the quid pro quo relationship with Quebec's business sector. As far as the well known discriminatory practices inherent to the system, Charest is more than prepared to let them continue as long as he can cling to power.

What we need in Quebec is a not so quiet revolution or an enlightened decision from the Courts to have the first-past-the-post method declared null and void.

Friday, October 29, 2010

The Dance of the Despot

I have to say that things just keep getting weirder in Quebec every day, especially if you are a democrat.

Yesterday, Premier Jean Charest announced that he was scrapping the electoral map drawn up by the independent Director General of Elections and effectively suspending the electoral laws in Quebec until he can figure out exactly what he wants.

The process of how the electoral map is to be drawn up, how the public is to be consulted, and how the new map is to be ratified in Quebec's National Assembly is clearly spelled out in the electoral law. It's just that Charest doesn't like or appreciate that the Director General of Elections, Marcel Blanchet, goes about doing his business in a law abiding fashion, which includes respecting the constitutional limits upheld by the Canadian Charter of Rights and Freedoms with regard to the equality guarantees in the manner electoral systems advance and maintain each citizen's right to vote.

In short, Charest doesn't like the way the law and the jurisprudence surrounding the right to vote is written, so he unilaterally decided to scrap Quebec's electoral law, which in my opinion is a despotic act. It demonstrates a fundamental contempt for democracy and a belief that the state, c'est moi.

This farce has been going on ever since he took office. Leading up to the 2003 Quebec General Election, he promised to introduce elements of proportionality into the voting system. He led us to believe that change was in the works: draft legislation was introduced and a special commission was convened to consult the population. The only problem was that no one supported the proposed the model. So, to save face he asked Mr. Blanchet to prepare a report detailing how the model could be improved. However, he didn't like the findings of the Director General's report so it was released three days before Christmas and then properly buried.

Still required by law to produce a new electoral map -- in passing, approximately one in four ridings didn't conform to the electoral laws limits on the number of electors per riding when Charest decided to call a snap election in 2008 -- Mr. Blanchet set out to draw up a new map that would respect the constitutional limits of the number of electors per riding. Given the demographic shift away from the outlying regions towards the regions surrounding Montreal, the new map eliminated three ridings in the peripheral regions and added three to the more populous regions. Sounds fair to me even though I am dead set against the use of the present voting system.

But once again, Charest didn't want what the law prescribes, so he introduced legislation that would in effect create rotten boroughs in the outlying regions in which the weight of a vote cast in one of these ridings would be three to four times greater than a vote cast in a large suburban riding.

Fortunately, the opposition parties would have none of it and neither would Mr. Blanchet, who on a matter of principle resigned rather than bow down to the desires of the despot. Bravo Mr. Blanchet!

Yesterday, in a truly pathetic gesture Charest calls a press conference in which he paraded the members of a committee from the outlying regions in order to announce that he is temporarily suspending the present electoral law and will introduce a new one by March 15, 2011, taking advantage of the fact that Mr. Blanchet is out of the country and unavailable for comment.

Very well orchestrated, and the dance of the despot goes on.

Thursday, October 28, 2010

Elizabeth May and Fair Vote Canada Apply for Intervener Status

On Monday, November 8, 2010, in Montreal at the Quebec Court of Appeal, Elizabeth May, leader of the Green Party of Canada, and Fair Vote Canada, the Pan Canadian civic association that promotes fair voting practices throughout Canada, will appear before the Court seeking to be granted intervener status in the Charter Challenge of the constitutionality of Quebec's use of the first-past-the-post voting system, Gibb v. Quebec's Attorney General and Quebec's Director General of Elections.

The two parties will be represented by the renown Canadian Constitutional lawyer, Peter Rosenthal, who successfully pleaded the landmark Figueroa v. Canada (Attorney General) before the Supreme Court of Canada. Many of the principle arguments put forward in our case stem from Figueroa decision. Having Peter join our legal team headed by Julius Grey, who has also successfully pleaded cases before the Supreme Court, gives us perhaps the strongest legal team ever assembled to put forward arguments in a democratic rights case in Canada.

The two parties could bring important perspective to our case. With regard to Elizabeth May, she leads the political party whose supporters participated in a mind boggling electoral anomaly which left the approximately one million Canadian electors who voted for the Green Party in the last federal election with no representation in Parliament. In the instance of Fair Vote Canada, its expertise in the manner that electoral systems function relative to their ability to produce fair electoral results is unparalleled.

At this point, I would like to thank the Green Party of Canada and Fair Vote Canada for their generous support, both financially and morally, for without their support and the support of other organizations and individuals, this case would never have made it this far.

As well, I would like to thank both Julius Grey and Peter Rosenthal for their generous spirit and unfailing devotion to advancing important democratic rights issues. In my mind, they both merit inclusion into the Order of Canada.

Monday, October 25, 2010

Quebec's Democratic Crisis Aids Our Cause

For the last eighteen months Quebecers have had their confidence in their democratic institutions put to the test. Month after month, new revelations concerning rampant influence peddling have come to light. All the while, a large majority of Quebecers have called for a public inquiry into the link between the construction industry and the financing of Quebec's political parties. Yet, Jean Charest's Liberal government has steadfastly refused. Needless to say, Quebecers have lost faith in their political system.

Earlier this spring, things came to a head when the former Quebec Minister of Justice, Marc Bellemare, accused Premier Charest of giving his consent to allow his party's principal fundraisers to have their say in the nomination of candidates to the judiciary.

Having lost all credibility to the vast majority of Quebecers, Charest had no choice but to convene a public inquiry into the nomination of judges (the Bastarache Commission)since at the most fundamental level the independence of the judiciary must be assured in order to restore faith in the system.

During the Commission's hearings, it came to light that a sitting judge petitioned one of the Quebec Liberal Party fundraisers to help him advance his chances to be promoted to the position of Chief Justice at the Quebec Superior Court in Quebec City. As well, we learned that another fundraiser sat on the selection committee and that when the candidates C.V.s were sent to the Premier before a decision was made, a post-it note would be attached if the candidate was a Quebec Liberal supporter.

Despite a thoroughly imbalanced process -- there were lawyers representing the Quebec government, the Quebec Liberal Party, and for the Premier while the opposition parties were not allowed to have representation thereby leaving Bellemare's lawyers alone to do the heavy lifting -- about 70% of the population believes Bellemare's version of the events while less than 20% find Charest's version credible.

To top things off, MacLeans magazine ran an issue that claimed on its cover that Quebec was the most corrupt province in Canada. This set off a round of soul-searching throughout Quebec in which it was extremely difficult to deny that we were experiencing the most serious democratic crisis since the days of former Quebec Premier Maurice Duplesis.

The reason I bring this up is that over and above the other developments that aid our cause since our case was tried, this development is the most important.

Judges, like all of us, are subject to their prejudices. If at an unconscious level they are aligned with supporting the party that forms the government, they are less likely to decide in favor of a motion like ours since such a decision could fundamentally change the way politics are done in Quebec. If, however, they are in a process of changing the nature of their affective ties with the present government, the opportunity arises that they would be more likely to render a decision in our favor.
In making this assertion, I am not implying that a judge would willfully make a decision contrary to the facts of the case and the principles of law. That being said, it should be noted that after all judges are human and like anyone else the affective processing that goes on in their brains influences the cognitive processes associated with analytical analysis.

It's for this reason, landmark decisions often follow a state of affairs that through fundamental cultural assumptions into question. For example, the striking down of Canada's laws surrounding prostitution at the Ontario Superior Court came on the heels of the Pickton case in which it was learned that the defendant had murdered at least 30 street prostitutes and fed their remains to the pigs on his farm. Affect can have an effect upon reason.

Regardless of the findings of the Bastarache Commission report, its release will once again bring to mind the fundamental systemic problems that Quebec's democratic institutions are experiencing and that release will occur less than a month before our appeal will be heard.

In summary, at the first instance we put forward a very strong case, which included expert testimony from two of the leading experts on electoral systems in Canada, expert testimony that demonstrated from a mathematical point of view that systemic distortion that first-past-the-post engenders, and empirical evidence that demonstrates how these distortions impinge upon the democratic rights of the plaintiffs.

Since then a number of developments in Quebec and the UK seriously undermine the case put forward by Quebec's Attorney General (of which I'll address in my next blog) but the one thing that we could never influence is the manner in which the judges who will hear our appeal will place our demand relative to their affective associations to the political system in place.

To the extent that such a variable comes into play during the deliberations leading to the decision, we could not have dreamed of a better set of circumstances in which to have our appeal heard.

Tuesday, October 19, 2010

Appeal to Be Heard February 8, 2011

Approximately two years after the decision was rendered in the Quebec Superior Court, our case which challenges the constitutionality of the first-past-the-post (FPTP) will have its day at the Quebec Court of Appeal.

To be frank, we didn't expect to win at the first instance. The case requires not only a thorough understanding of the jurisprudence surrounding the right to vote guaranteed by section 3 of the Canadian Charter of Rights and Freedoms, but as well a familiarity with the manner in which the different voting systems function. In my opinion, the judge who presided in our case did not understand the nature of the question that was being put forward and did not have access to the necessary human resources to plumb the depth of the question.

For example, he made his decision without making mention any of the expert testimony that we brought forward. In short, because we had voted in previous elections and two of the four plaintiffs had been candidates, our right to effective representation and our right to meaningful participation in the electoral process had not been violated. No mention of the substantive quality of that participation. His decision was silent on this matter, which I believe gave us the grounds for a successful appeal.

Sooner or later in this judicial process, the Court will have to respond to the essential question: "does the first-past-the-post method treat the supporters of smaller political parties in a fair and equitable manner?" Considering the institutional incentives that FPTP puts into place that makes it extremely difficult for smaller parties to gain representation, I have difficulty imagining how the Court can put forward a coherent argument that the FPTP method respects the values of a free and democratic society.

Fortunately, at the Appeal Court the case will be heard by three judges, each one having at his or her disposition a law clerk that will thoroughly examine the evidence that was submitted as well as the transcript of the previous trial.

As a result, we expect that the upcoming decision will respond to the nature of the question that has been put forward, and given the deep changes to the political context that have occurred since the first decision was handed down, the planets are now aligned so that a historic decision in our favor could come about.

In my next post, I'll summarize these developments.

Thursday, October 14, 2010

Maintaining a Just and Democratic Society?

Yesterday, Chantal Châtelain, the lawyer representing the Conference of Quebec Judges, told the inquiry that the probe into allegations of influence peddling in the nomination of judges may have caused irreparable harm to the courts that the commission has a duty to restore.

Quebec judges are worried that the public’s confidence in the justice system has been seriously shaken by testimony before the Bastarache commission, demanding that the inquiry set the record straight about the integrity of the province’s courts.

Ms. Châtelain said, "it is also important to grasp the full extent of the competence of the judges because it gives you an illustration of their contribution to maintaining a just and democratic society."

Well from my perspective, we don't live in a just and democratic society.

Where's the justice when the majority of votes cast in an election don't have any effect on the outcome of how the seats will be distributed in the National Assembly?

Where's the democracy when a single political party is allowed to govern as if it had a majority and in reality it is only able to garner the support of less than one in four registered voters?

Before a just and democratic society can be maintained, it first must be attained!

Essentially, the question we have put before the Courts will allow the judiciary to assume its proper role as the guardian of justice and democracy by striking down the key provisions of an electoral system that turns government into a patronage machine.

Here in Quebec, the appointment of judges is no different in kind than other government appointments and the distribution of government contracts based on demonstrated loyalty, in other words, financial contributions to a political party. The whole political system is just an elaborate quid pro quo.

So, enough of the feigned discomfort of having the honor of the profession called into question, do the right thing and force this government to transform Quebec into a democracy.

Tuesday, October 12, 2010

A Pathetic Ploy to Reform Quebec's Electoral Map

Back in 2003, Jean Charest made the electoral promise to introduce elements of proportionality into the voting system. Thereafter, draft legislation was tabled and a special commission struck to consult the public with regard to the proposed changes to see if they respected the two principles of equal voting power amongst voters and representation for the regions. The report from the commission rejected the flawed model and the matter was then referred to the Director General of Elections, who delivered a report that offered the means to improve the model, which was then quickly shelved.

In the meantime, the Director General of Elections was given the onerous task of drawing up a new electoral map using the first-past-the-post method in which it was obvious that to respect the constitutional limit of the relative number of electors per riding that there would be seats lost in the peripheral regions and seats added to the more populous regions surrounding Montreal.

While this was being done, the Liberal government introduced legislation that would have maintained the number of ridings in the peripheral regions -- essentially turning them into the equivalent of rotten boroughs -- but would have surely brought on litigation challenging the constitutional legitimacy of such a move.

Undeterred, the Director General of Elections went ahead and drew up the new electoral map respecting what he believed to be the constitutional parameters guiding the exercise, delivered his map to Quebec's National Assembly, only to be accused by two Liberal Ministers of betraying the regions and to have performed his work in a manner beneath the dignity of the institution he represented.

As could be expected, showing himself to be a man of honor, Marcel Blanchet, the Director General of Elections tendered his resignation.

Since then, the Premier of Quebec, Jean Charest, went on to make a public declaration at a meeting that regrouped Quebec's municipalities to the effect that if the outlying regions didn't want to loose any of their deputies they would have to make some noise in order to put pressure on the Parti Quebecois to change it position so to support the legislation that would keep the number of seats there but at the price of giving Quebec what would be without question the worse electoral system in North America.

What I find truly pathetic in Charest's gesture, over and above the fact that the Director General of Elections's resignation made no impact whatsoever on his understanding of the situation, is that he transfers the responsibility of avoiding the negative consequences of his government's failure to change the electoral system to the people that are the most adversely affected by maintaing the first-past-the-post system.

In short, by maintaing single member districts without changing the number of seats in Quebec's National Assembly means that it is inevitable that given Quebec's demographic changes that there will be a loss of seats in the regions experiencing a loss of population. Moreover, the affected regions bear the brunt of the loss without any compensation.

What the "protesters" haven't been made aware of is the fact that if Quebec were to adopt a proportional electoral system, any loss of single member districts would be made across the entire electoral map and those seats lost would be transferred to a national list from which the peripheral regions could gain additional representation.

But this would require Jean Charest to come clean about his failure to respect an electoral promise, something as unlikely as his government calling a public inquiry into the relation between the construction industry and the financing of political parties in Quebec.

Vivre le Quebec. Vivre le Quebec sans Jean Charest.

Sunday, October 10, 2010

In Desperate Need of Fresh Air

While watching the news about the rescue efforts to free the Chilean miners trapped below the surface of the earth who are patiently waiting for a rescue tunnel that would allow them to escape, I find myself thinking that this is an apt metaphor for how we the citizens of Quebec live our lives within our political system.

We too are confined. Yes, we can move about within the parameters of a society that offers the choice of either being governed by a political party rife with corruption or one that is stuck in the past with its quixotic quest for independence, but we cannot escape.

Collectively, we cannot move beyond these options and, as a result, our fundamental democratic right to self determination is denied.

This week rumors of the emergence of a new political party spread quickly throughout the mainstream media. Two former ministers of the Quebec Independence Party (Parti Quebecois), Francois Legault and Joseph Facal, who are associated ideologically with the former Premier of Quebec, Lucien Bouchard, who recently stated that he no longer believed that independence was realizable, are said to being laying the groundwork for a new party that would be a right of centre, nationalist party that wouldn't seek to establish Quebec sovereignty.

Credible Francophone nationalists wanting to turn the page on the obsession to create an independent state. Indeed, this is a breath of fresh air.

However, lest we get our hopes up, it is rare that an emerging political party can dislodge one of the two parties that offer an option of forming a government. It happened twice during the twentieth century in Quebec and has yet to happen in Canada since confederation. In our current electoral system, votes cast for smaller parties seldom transfer into seats in the legislature and when they do, rarely do they change the balance of power. Quebec has had only one short-lived minority government within the last century.

Effectively, this week's political analysis concerning the possibility of the formation of a new political party quickly transformed into the question of which of the two established parties would be more adversely affected. In other words, would the splintering off of votes in favor of the new party mean that more Liberal or PQ candidates would get elected?

So much for the breath of fresh air. Once again the dearth of viable political options within a political system that is a vestige of the British Empire stifles the legitimate expression of democratic choice.

To escape this political prison, we also need an escape tunnel.

Essentially, our appeal to the courts is a petition that would allow Quebecers to escape the confinement of being dominated and ruled authoritatively by a two party system. Already, we have lost approximately one half of the electorate who can no longer be bothered to cast their votes.

By supporting our motion to have the first-past-the-post voting system declared unconstitutional, the courts would, in effect, create the political equivalent of a path that would allow the Quebec population to move toward the capacity to govern themselves democratically.

Wednesday, October 6, 2010

Welcome to Taking on the System

Our political system in Canada concentrates power in a relatively small political and financial elite. This is done by using an electoral system that is profoundly undemocratic. Majority governments are formed with the support of less than one quarter of the electorate.

Moreover, more than ever, Canadians are feeling that politicians advance the vested interests of the few before the well-being of the many. Indeed, that's how the system was designed to function.

Yet, a growing number of Canadians refuse to accept this outcome and demand qualitative change to the electoral system so that it brings about electoral results that accurately reflect the popular vote. No less than four referendums have been held in Canadian provinces in which a competing model that offered more proportional results was offered as an alternative to the first-past-the-post method. In a fifth province, Quebec, draft legislation was tabled that would have introduced elements of proportionality into the province's electoral system.

In each instance, efforts to make the electoral system more equitable were thwarted. For the most part, dubious practices were implemented by the ruling political party in each respective province to ensure that the status quo remained. These practices include pathetic public education campaigns, the imposition of supra majority thresholds, and conducting the referendum in a manner where it would next to impossible to meet the required participation rates.

Despite these setbacks, it is evident that the problem remains and that our politicians left to themselves will not change the system.

Having foreseen the unlikely probability that politicians would act in a manner contrary to their self interest, we decided to go another route and deposed a motion in the Quebec Superior Court in 2004 that sought to have the offending articles in Quebec's Electoral that are responsible for bringing forth such a discriminatory voting method to be declared null and void. Essentially, we are asking the Courts to determine whether the voting system in use in Quebec and across Canada respects the equality guarantees inherent in the voting rights protected by the Canadian Charter of Rights and Freedoms.

The wheels of justice move slowly but surely. To date, to use a hockey analogy, we are tied at the end of the first period. We won the first stage, having our case ruled to be admissible, but we lost the second stage, the Court did not rule in our favor in the first instance. We are now at the beginning of the second period, waiting for our court date to be set for our appeal to be heard. We anticipate because of the game changing consequences if our motion were to succeed that the case will eventually be heard at a third instance, the Supreme Court of Canada.

Now that we are just a few months away our next court date, I've decided to maintain a blog that chronicles the judicial process and the roller coaster of emotions that myself as one of the principal plaintiffs experiences.

Having set out on the long voyage of a Charter Challenge that is now nearing an end, I'd like to share with you my observations on how our political and judicial system functions and what happens to an ordinary citizen who dares to take on the system.