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.