Reprinted from the Toronto Star.
November 13, 2010
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.”