A Brief History of Democracy

Wednesday, November 16, 2011

May and Fair Vote Canada Support Court Challenge of First-Past-the-Post

15 November 2011

OTTAWA - Members of the Association for the Advancement of Democratic Rights, represented by the accomplished constitutional Montreal lawyer, Julius Grey, will file their appeal to the Supreme Court to have heard, their case regarding the constitutional merits of first-past-the-post. The motion asks for the system to be struck down. A favorable decision would prohibit its continued use in Quebec and would certainly impact on its continued use in the rest of Canada.

Elizabeth May and Fair Vote Canada were granted intervenor status by the Quebec Court of Appeal and will again apply for such status if the case were to be heard by Canada's Supreme Court. Both parties are represented by Peter Rosenthal, an experienced constitutional lawyer from Toronto, who has also been successful in his presentations before Canada's highest court.

“Canada’s Charter of Rights and Freedoms guarantees us the right to vote,” said Wayne Smith, Executive Director of Fair Vote Canada (FVC). “The Supreme Court has ruled in previous decisions that this doesn’t just mean the right to put a piece of paper in a box. We are guaranteed the right to effective representation.”

At the press conference Smith announced that, Fair Vote Canada, Canada’s national citizens’ movement for electoral reform will contribute $10,000 in matching funding to support a challenge in the Supreme Court of Canada.

“The damage done by first-past-the-post extends from the voting box to the very degradation of political discourse in this country,” added Green Party Leader Elizabeth May. “When a party can achieve majority control over the entire country with as little as 38% it is evident that our voting system delivers unfair and anti-democratic results.”

“Having gone through the courts in Quebec only to have our empirical evidence and expert testimony virtually ignored, we are hoping that the Supreme Court will hear our appeal and give our case due consideration,” said Brian Gibb from the Association for the Advancement of Democratic Rights and one of the principle plaintiffs in the case. “We anticipate that the Court will render its decision on whether to hear our case within the next six months.”

Tuesday, November 1, 2011

Discarded Votes Deny Effective Representation

To understand the democratic principles on which our political system is supposed to draw upon we must look back to its birthplace in ancient Greece.

At its inception, democracy was direct and participatory. Although citizenship in Athens was restricted to Athenian males of a certain age, each citizen had the right to attend and address the Athenian assembly. There was no need for intermediaries to represent their concerns.

In the modern state, because of the large number of citizens, it is impractical to have everyone to attend the meetings of the assembly, which necessitates citizens being represented by elected officials.

Importantly, there is no perfect method to do so. When reducing a large number of citizens to a relatively smaller number of elected officials, there is always room for error given that the diversity of preferences cannot be captured perfectly by a finite number of seats. Some groups will be over-represented at the expense of others.

The important considerations with regard to quality of the representation are whether the formula used to translate votes into seats uses all of the votes cast as the basis of determining the representation and the number of seats available within an electoral district.

For instance, if the number of seats available in an electoral district is sufficiently large, the number of seats available exceeds the number of political parties contesting the election, and the seats are divided in proportion to the number of votes cast for each party, the distribution of seats relative to the distribution of votes will be fairly accurate and the vast majority of electors will find representation.

This is the case in countries like the Netherlands and Israel which use the entire nation as a single electoral district and assign seats based on the percentage each party receives of all the votes cast. Although the distribution of seats is not perfectly proportional, rounding errors occur and parties which receive less votes than the total number of votes cast divided by the total number of seats available may not be represented, over all, this method yields highly accurate results.

The magnitude of the disparity caused by rounding and parties failing to reach the threshold of votes required to gain a single seat increases as we divide up a single nation-wide electoral district into a number of smaller geographical electoral districts. Nevertheless, as long as we are dividing up the seats on the basis of the popular vote and the number of seats is not reduced so to limit the representation of a significant number of voters, the vast majority of electors will be effectively represented.

This is not the case when we abandon the attribution of seats on the basis of the percentage of the popular vote and instead attribute seats on the basis of a candidate obtaining a majority or a plurality of votes cast in each electoral district. In either case, only those electors whose votes are used in establishing the majority or the plurality are effectively represented. All of the votes not used in establishing the majority or the plurality are simply discarded and the electors who cast them are denied effective representation.

This feature of majoritarian and plurality voting methods is profoundly antidemocratic. If at the heart of the exercise is the desire to give effective representation to as many citizens as is mathematically possible, voting methods that systemically discard a great number of votes are in flagrant violation of one of the most fundamental democratic principles.

Indeed, all of the perverse effects of majoritarian and plurality systems: over-representation of the governing party, under-representation of the opposition, no representation of smaller parties, and the reversal of electoral results that occurs when a political party that receives less of the popular vote than a rival party goes on to form a majority government are attributable to votes being discarded.

Importantly, the distortions caused by these voting methods are over and above those caused by reducing a large number of citizens to a much smaller number of elected representatives. In fact, the distortions are socially constructed as a result of the mechanisms employed to convert votes into seats.

In the worst case, first-past-the-post demands only a simple plurality to determine the winning candidate. Most often when more than two candidates run for office, the winning candidate will garner less than half of the votes, which means that a majority of voters have voted against their elected representative.

In short, first-past-the-post violates not only the effective representation for all citizens requirement of democratic electoral systems, but the majority rule principle as well.

Voting methods that aggregate voting preferences or engage in two or more rounds to select a candidate abide by the majority rule principle but violate the effective representation requirement in that they most often depend on the lesser choices of many voters to bolster the authentic choice of a minority of voters to elect a candidate. More voters participate in choosing the elected representative than when a plurality method is used, but the participation is qualitatively unequal: second or third choices are unequal to first choices, but in the tallying of votes they are accorded the same weight.

This brings us to the our case that contests the constitutionality of the first-past-the-post method in Canada. According to the jurisprudence from the Supreme Court of Canada, the Charter of Rights and Freedoms guarantees the right to effective representation to all citizens. Given that candidates from political parties almost invariably elected to Parliament and in practice vote on party lines, those citizens that voted for other candidates are denied effective representation having lost their effective voice in Parliament.

As a result, we hold that if the Supreme Court of Canada decides in this case to uphold the values of a free and democratic society, it will have no choice but to declare the articles in the Quebec Electoral Act that bring about the first-past-the-post system null and void which will be tantamount to declaring the use of the method unconstitutional in other provincial legislatures and in Parliament.

Friday, October 21, 2011

It's Now Up To The Supreme Court of Canada

Seven years later, two refusals to entertain the evidence, we finally arrive at the end point of our journey: applying for leave to appeal our case concerning the constitutionality of the first-past-the-post voting system to the Supreme Court of Canada.

Essentially, the question we are asking of the courts is whether the current voting system respects the equality guarantees laid out in Canada's Charter of Rights and Freedoms.

That the Quebec Superior Court and the Quebec Court of Appeal did not grant our motion to have the articles of Quebec's Electoral Act that stipulate the use of the first-past-the-post method declared null and void did not come as any surprise. After all, Quebec still hasn't signed the the constitution circa 1982, which establishes the Charter.

Our expert testimony that provides both mathematical and empirical evidence demonstrating the systemic discrimination inherent to the system is barely mentioned in either decision. In the first instance, the judge wrongfully dismissed our case saying that the question was essentially political, and in the second instance the appellate court concluded that although our case was indeed judicable, such egregious democratic anomalies like a political party that received nearly a million votes but was denied representation and political parties that received less votes than another but still went on to form a majority government were not sufficient grounds to demonstrate that first-past-the-post impinged upon citizens's rights to effective representation.

Comments like that blow my mind.

In trying to wrap my mind around such outrageous statements, I can only come up with three explanations. The first is that the Quebec Appeal Court decided to evacuate any democratic norms from the notion of effective representation: being able to cast a vote, become a candidate, and being represented by a deputy is all that is required for representation to be effective. That the result of the electoral process is undemocratic does not matter. The second is that the since the Court didn't understand the nature of the question that was being asked, it consequently opted for the default option and denied the motion. The third is that judges acted upon the notion is that they are there to ensure the continuity of the state as it presently exists and will therefore not grant a motion that would effectively cause a significant rupture with the past.

All three scenarios give us grounds for an appeal.

In the first instance, the application of the Charter is guided by the values belonging to a free and democratic society and not a society that is free from the constraints that democracy imposes. In the second, it appears that it is only at the Supreme Court of Canada that we find the human resources and intellectual rigor to properly render an informed judgment on what is a fundamental question concerning Canada's system of governance. Finally, in the third, it is the primary role of the Court to uphold the rights protected by the Charter not to uphold a government's right to continue an electoral practice that contravenes each citizen's right to participate in a democratic election.

So we now arrive at a moment of truth, a moment that speaks volumes about how this nation-state is constituted.

For the Supreme Court to hear our appeal demonstrates a commitment to the values of a free and democratic society.

For the Supreme Court to decide not to hear our appeal would be an instance of dismissive silence that demonstrates that Canada has not yet evolved from its colonial past as an English settler state.

Our appeal will be filed before November 14, 2011.

Sunday, September 18, 2011

There's Something Rotten in the Province of Quebec

This week was a remarkable week. On two levels, I witnessed now badly the situation has unfortunately deteriorated in la belle province.

I am of the opinion that under the guidance of Premier Jean Charest, Quebec has devolved into a kleptocracy and Charest has become a modern day despot exercising his control over the entire state including the judiciary.

Early in week, the report leaked to the press from the Quebec Government's anti collusion squad was damming. It went as far as to say that some functions of the state had been overtaken by a consortium of public servants working for the Ministry of Transportation, engineering firms, and the criminal element, supported by a clandestine financing of Quebec's major political parties in the way of kickbacks which arise from charging overinflated prices for construction projects and a portion of which eventually reach their way to the political party in power.

In other words, everybody in the consortium is taking a cut while the taxpayer is being ripped off for the replacement of the crumbling infrastructure at a cost that is 40% higher than the rest of Canada and is of lower quality. It goes as far as having the Ministry of Transport contracting out to the private sector to do the required inspection and supervision of the construction performed by the private sector firms. The report details how the consortium will arrange to charge the government for 1000 truckloads of contaminated earth to be removed when in reality it takes only 100 truckloads to perform the task.

No wonder the Quebec Government announced in the same week a 800 million reduction in budget expenditures, including funding for Health and Education. Faced with a mountain of debt, the Quebec Government has to find some way to keep the infernal money machine operating.

Incredibly, when Premier Charest faced the media, had the audacity to say that it was thanks to the determined efforts of his government that we have become aware at how corrupt it has become. He went as far as too say that he hadn't even read the report. Imagine going in front of the nation without having read the document leaked to the press and is available on the Internet that asserts that your government is the most corrupt in living memory.

Yet, Charest has something up his sleeve that most Quebecers are only vaguely aware of despite the recent public hearings of the Bastarache Commission that investigated irregularities in appointing judges to the bench.

During his press conference, Charest would keep coming back to the point that we live by the rule of law, evidence must be obtained, and that the government is determined to prosecute those who have engaged in illegal activities.

What is left unsaid is that Charest and his Liberal cronies effectively control the legal system. They decide where and how legal resources will be deployed concerning who is targeted for investigation and who will be charged. Moreover, they have put in place many of the judges who preside over the trials and more importantly the judges that decide which of their peers will hear which cases. In short, the fix is on as we should expect when candidates applying for positions on the bench have their resumes forwarded to Premier Charest with post-it notes that indicate whether they have supported the Quebec Liberal Party in the past.

At a personal level, I have first hand experience with how political power controls the judiciary. As any reader of my Taking On The System blog would know, we have filed a motion to have the first-past-the-post electoral system declared unconstitutional.

This week we received the decision from Quebec's Court of Appeal that I would liken to the insult to their intelligence that Quebecers felt when their Premier appeared before them to defend himself from the accusations from a report that he commissioned but couldn't be bothered to read.

Not surprisingly, the decision did not support our motion to have the electoral system declared unconstitutional. After all, for better or for worse, the first-past-the-post voting system distorts the popular vote to give dictatorial control of the government to the leader of the party that wins the most seats. The political power that the Premier enjoys results from a manipulation in the manner the votes cast are transformed into seats in the legislature and that power is used to appoint judges. Simply put, judges are human and they are not going to bite the hand that feeds them.

Intellectually, I understand the systemic bias that protects the status quo, but what I didn't expect is a decision that would make Kafka laugh in the way it was rendered.

In rendering his decision, Judge Dufresne did toss us a crumb in asserting that the lower court judge had erred when saying our case wasn't judicable. Wow! This question had already been addressed when Quebec's Attorney General tried and failed to have our case declared inadmissible at an earlier instance in the proceedings. Moreover, even a cursory reading of the jurisprudence would indicate that the Court is obliged to hear a case when reasonable doubt on the constitutionality of electoral practices has been produced.

However, when it came to the real question that was put forward, it was as if the three judges put their hands over their ears and started singing and uttering the phrase, "we can't hear you".

In our case, the judge accepted what was obvious, the first-past-the-post voting system distorts the popular vote, but declared that this in itself wasn't sufficient to grant our motion since all voting systems produce distortions.

Well then what about the scale of the distortions and the manner in which they are produced? We have provided expert testimony that demonstrates that the level of distortion is beyond that of the distortions caused by other electoral practices and were subsequently declared unconstitutional and that the manner in which it is done is unclear violation of the equality guarantees of the Charter.

No matter. We won't give that evidence proper consideration. In the lower court decision not a word was devoted to our most compelling evidence in the analysis and the Appeal Court Judges decided that this slight of hand did not constitute a judicial error.

Excuse my language but "What the Fuck!"

Again, I would accept the decision if it were demonstrated that we had erred in claiming that the fact that first-past-the-post denied representation to as many as a million voters that voted for the Greens in the 2008 federal election was an infringement of their democratic rights guaranteed by the Canadian Charter of Rights and Freedoms.

But this was not done. They simply dodged this inconvenient fact with dismissive silence concerning how such an electoral anomaly could be countenanced. To date, the contestable prejudice caused to those who have their votes discarded by an electoral system that is unique in that it doesn't possess a mechanism to aggregate votes or voting preferences has not been addressed and thus gives us grounds for an appeal.

Moreover, Judge Dufresne went on to make two outlandish statements that suggest that he doesn't understand or chooses not to understand the fundamental democratic principles upon which the case is founded.

The first was to suggest that the fact that the reversal of the democratic result of the Quebec 1966 and 1998 general elections (the party that won less votes than another went on to form a majority government) and the fact that almost a million voters who voted Green did not gain any representation in the 2008 federal election did not constitute a grave injustice. At the same time, Judge Dufresne uses a statistical outlier, a once-in-a-hundred year electoral result from the 2007 Quebec General Election (the three major parties gained more or less representation proportional to the popular vote) to demonstrate that the distortions inherent to first-past-the-post are not systemic yet ignored that two smaller parties that together garnered 7% of the vote were denied any representation at all.

He then suggests that the most recent federal election in which the Conservatives form a majority government with only 39% of the popular vote and in Quebec the Bloc is reduced only 4 out of 75 seats despite amassing 25% of the popular vote while the the NDP gains 70% of the seats with only approximately 40% of the vote is evidence to the contrary. In making such a claim, Judge Dufresne is suggesting that black is white for in no way do these electoral results conform to the principles of democracy, in particular that each and every vote carries equal weight.

One has to wonder what is the frame of reference being used to apply the concept of effective representation for each and every citizen. Do the egalitarian values inherent to democracy enter the equation? Apparently not in Quebec at this time.

Clearly, an appeal grounded on democratic principles would go nowhere in Charest's Quebec because to grant our appeal would upset the very power base that political parties rely upon to gain absolute control of the state and their subsequent ability to redirect a large portion of the collective wealth into private hands. Too many people profit handsomely from this dysfunctional form of governance to let it be replaced with a democratic electoral system.

In order to seek justice, we will need to have our case heard in a different political context, which we hope to find in having our appeal heard at the Supreme Court of Canada.

Friday, July 15, 2011

No News Is Good News

It's been more five months since our appeal was heard and the decision has yet to be rendered. I take this to be good news since it means that our arguments weren't simply dismissed outright as was the case in our unfavorable decision at the Quebec Superior Court.

As a result, I expect a substantive decision that will either declare the present electoral system unconstitutional or square the use of first-past-the-post with democratic principles. In the latter case, this could turn out to a Herculean task since the right for each citizen to have an effective voice in the legislature runs contrary to the systemic elimination of voices that a winner-take-all, plurality voting system entails.

Of course, we would prefer that the Court upholds our appeal, but if not, I am quite confident that any attempt to square the circle will give us sufficient grounds to have our appeal heard at the Supreme Court.

Monday, May 16, 2011

Add Bill 19 as Another Reason Why the Court Should Intervene in the Quebec Charter Challenge of First-Past-The-Post

Last week, the Charest-led Liberal Government introduced Bill 19 in order to have an electoral map in place for the next Quebec general election, which is due to be held within the next two years.

The problem is that the proposed map does not address the fundamental flaw of the existing map that there are a number of rural tidings that do not respect the constitutional requirement with respect to the relative number of electors per riding, no more than a 25% deviation from the provincial average.

Previously, the Director General Elections had drawn up a new map that would respect this constitutional requirement by adding three new electoral districts to the more populous regions outside of Montreal and by removing three electoral districts in the sparsely populated outlying regions.

Unhappy with the fact that the Director of Elections would not comply with Charest's wishes to ignore the constitutionality of a new electoral map, the Premier decided to suspend the powers of the Director even before getting the necessary legislation adopted in the National Assembly.

He then introduced Bill 19, which essentially adds the three new ridings without removing the three targeted ridings. The problem of the inequality of voting power between rural and urban ridings remains: there are a number of urban ridings that have twice the number of electors than their rural counterparts. Consequently, the vote of a citizen in a riding that was targeted to be removed is worth twice the vote of a citizen who casts his vote in a more populated riding.

At the heart of the issue is the inability of the first-past-the-past voting system to accommodate demographic trends in Quebec. People are leaving the outlying regions to live in the more populated urban centers. As well, immigrants also choose overwhelming to do the same. Inevitably, if single member districts are to be used something has to give, and if a change to multimember electoral changes is not implemented, the outlying regions will bear the brunt of the redistribution.

Given the choice of respecting the fundamental democratic principle of the equality of vote or keeping in place an institutional practice that does not have the capacity to adapt to Quebec's demographic reality, Charest is clearly clinging to the outdated voting system that allows him to form a majority government with the support of only a minority of the electorate. Clearly, Charest's desire for political power overrides his responsibility to put and keep in place a democratic electoral system.

Although the question now before the Quebec Appeal Court is larger, the constitutionality of using single member electoral districts in conjunction with a plurality method to determine representation, by striking down the first-past-the-post system the Court would prevent the Charest government from adopting what is without question the most discriminatory electoral map in North America.

Monday, May 9, 2011

Electoral and Referendum Results Demonstrate the Need for the Courts to Intervene

Last week's results for the Canadian federal election and the crushing defeat of the alternative vote option in the United Kingdom's referendum on the voting system clearly demonstrates why the courts need to intervene in order to change the voting system.

Looking at the electoral results, first-past-the-post's propensity to produce significant distortions of the popular vote held true to form. Essentially, the election was decided by the huge winner's bonus that the system awarded the NDP in Quebec, which was more than offset by the vote splitting in Ontario that created the conditions for the Conservatives to form a majority government despite the fact that that had received slightly less than 40% of the popular vote. In a tell tale sign on the inadequacy of first-past-the-post, the Greens were able to concentrate their efforts into a single riding and elect their first Member of Parliament, but this came at a cost of loosing one third of their share of the popular vote as compared to the previous federal election.

Clearly, the systemic distortions inherent to the system were manifest and this time it was in Quebec where both the Liberals and the Bloc Quebecois received the greatest reductions of seats as compared with the popular vote: a first for both parties during the last twenty years, which should catch the attention of the judges at the Quebec Court of Appeal.

In a similar vein, the massive refusal to change the voting system in the UK follows similar results on voting system referendums in British Columbia and Ontario. It appears that the populations in all three jurisdictions do not find the discrimination perpetuated by first-past-the-post to be sufficient to warrant changing the system.

Since the right to vote is protected by the Canadian Charter of Rights and Freedoms and the political process has failed to change the voting system in a manner so that these rights are protected for all citizens, the Court is indeed obliged to intervene.

Only by striking down the electoral law that brings about first-past-the-post can the legislative branch be forced to bring its electoral practices in line with the equality guarantees of the Charter.

In doing so, the Quebec Court of Appeal would be following the example of the American Supreme Court that struck down state electoral laws that were extremely discriminatory towards African Americans and led the way to the adoption of the Voting Rights Act.

Friday, April 1, 2011

The Federal Court of Appeal Should Grant a Interlocutory Injunction Against the Exclusion of Elizabeth May from the Televised Leaders Debate

I think that it should be obvious by now that the Greens are subject to some very serious discrimination against their fundamental democratic rights. I also believe that the exclusion of Elizabeth May from the televised leaders debate illustrates the systemic nature of this discrimination.

Keep in mind that during the 2008 federal election, the Greens received almost one million votes and were not awarded a single seat in Parliament. To put that in perspective, the Bloc Quebecois received 1.3 million votes and received 49 seats.

As you know, if you follow this blog, we have contested the constitutionality of the voting system that could bring about such a democratic anomaly. Both Elizabeth May and Fair Vote Canada were granted intervenor status. Our appeal was heard on Feb. 8, 2011 and a decision is pending.

The reason given by the television consortium for excluding Ms. May was that the Greens had not won a seat in Parliament. Hey, wait a minute isn't the constitutionality of the very said voting system that makes it such that a million electors forgo effective representation despite their numbers presently before the Quebec Court of Appeal?

Given that the decision hasn't been rendered but is expected shortly and it is entirely possible that the grounds put forward to justify the exclusion of Ms. May would also be rendered untenable if the Court strikes down the use of the very same voting system, the Federal Court should grant an interlocutory injunction that maintains the status quo, which means as was the case in 2008, Ms. May would participate in the leaders debate.

After the Quebec Court of Appeal has rendered its decision, then the question put before the Federal Court can be examined and decided upon. To rule beforehand could expose the plaintiff to irreparable harm since her exclusion from the debate could prevent voters who might be otherwise inclined to vote for the Greens from doing so if they had had the opportunity to witness her participation during the leaders debate. Moreover, her inclusion in the debate would not be prejudicial to the other leaders since they opted to participate in such a debate in 2008.

Clearly, the Federal Court of Appeal has the opportunity to uphold the values of a free and democratic society and we would hope that it would do its part in bringing the systemic discrimination against the Greens to an end.

Wednesday, March 16, 2011

Quebec's Major Political Parties Collude to Maintain the Worst Electoral System in North America

Quebec's two major political parties refuse to uphold one of the most fundamental principles of democracy: one person, one vote.

Stuck with an outdated electoral system and having refused to change the voting system both parties voted to suspend the powers of the Director General of Elections who had the audacity of proposing an electoral map that respected that constitutional requirements of the relative parity of the vote.

Presently, 27 of the 125 ridings do not conform to the Quebec Electoral Law's stipulation that the number of electors per riding can be no more or no less than a 25% deviation from the average number of electors per riding province wide. The proposed map would have rectified this anomaly.

This week the PQ recommended that there be two different provincial quotients, one for rural ridings and one for urban ridings, which means that the inequality of the vote would become institutionalized. Furthermore, this move would be in the national interest. Remember this is the party that claims to be socially democratic. I guess some social democrats are more equal than others depending where you live.

Not to be outdone, the Quebec Liberals then proposed that they would add three additional electoral districts to the map. Too bad it would take at least 26 additional seats to lower the provincial average for the number of electors per riding so that all of the ridings would conform to Quebec's own electoral law.

I hope the judges who are now rendering their decision in our motion to have Quebec's voting system declared unconstitutional take notice that at the moment Quebec does not have the institutional capacity to bring its electoral system within the democratic norms of a developed country.

Declaring First-Past-The-Post to be unconstitutional would help break the impasse.

Thursday, February 17, 2011

Referendum in the UK on the Voting System Aids Our Cause

Well, it's official. There will be a referendum on the voting system in the UK on May 5, 2011. From a legal standpoint, this is very good news. In short, the holding of the referendum and the choices given to the electorate torpedo two of the principle arguments put forward by Quebec's Attorney General.

The first argument is that the first-past-the-post system could not be unconstitutional since it is part of our constitutional legacy to be found in the B.N.A. Act. However, by putting the question to a vote, this demonstrates that choice of a voting system is not frozen in time. It is something that evolves over time much like the extension of the franchise. Just as the refusal to not extend the vote to women in 1867 could not pass constitutional muster in a today's post-Charter Canada, the same can be said of the voting system, especially when we take in consideration that holding a referendum on the question bespeaks of its fundamental problems. Essentially, the referendum in the UK gives legitimacy that the question that we are putting before the courts is indeed subject to judicial review.

The second argument that falls by the way side is the claim that we are attempting to have the courts impose a particular voting system on the Quebec legislature. On the contrary, the choice of a second majoritarian voting system on the ballot demonstrates without question that the legislature can opt for an alternative method other than a proportional voting system.

If we were at the lower court, I'm not sure if the judge would grasp the significance of this development, but now that we are at Quebec's highest court and given the type of interventions made by the judges during the appeal, I am confident that they will give this development the consideration it deserves.

Wednesday, February 9, 2011

Julius Grey and Peter Rosenthal 2, Quebec Attorney General 0

Going into Court yesterday our expectations were low. We knew the judges that were selected are conservative and unlikely to support a Charter Challenge. However, upon leaving the Court we were all on a high, having realized that based on the oral arguments, we had carried the day.

This time around, we were in front of a trio of judges that had read the factums, the expert testimony and the transcripts from our trial at the Superior Court. That was not the case the first time around when it was obvious that the trial judge had not prepared properly, and, for the life of me, I don't think he really understood the nature of the question before him.

In this instance, six days of arguments were reduced to a single day. Two questions emerged. Is the question judicable? Does the fact that all voting systems create some type of distortion mean that the distortions of FPTP are no better, no worse than any other voting system and that consequently the choice of electoral system is entirely political?

In his opening statement, Mr. Grey was eloquent. He focused his presentation on why the Court needed to intervene and to draw a parallel between the case before the Court and historic decisions from the past.

Thereafter, Mr. Rosenthal critiqued the lower court decision and the factum submitted by the Crown on points of law. He then went on to explain how FPTP discriminated against women.

It was then the Crown's turn, and I am being kind when I say that the principle lawyer representing the Crown was ill-prepared. He was all over the place in his presentation, was interrupted several times by the three judges and was reproached twice. This seemed to rattle him. He seemed to be content to read aloud much too quickly citation after citation. The second lawyer who followed did much the same, leaving us with the feeling that both of them had added nothing to their cause.

As it turned out we had the last word and Mr. Grey in one feel swoop destroyed one of the principle arguments of the Crown. He cited the Saskatchewan Reference written by the Chief Justice of the Supreme Court of Canada, which points out that absolute voting parity is not required but that undue dilution of the vote shall not be countenanced and that deviations are acceptable in only two instances: logistical impossibility or if the deviation gives better representation. This is certainly not the case with FPTP and the Crown provided no evidence to demonstrate that the distortions were attributed to either instance.

Exasperated, the lawyer representing the Crown was beside himself throwing his glasses on the table. Undoubtedly, a sign of a lack of emotional intelligence on his part.

Mr. Rosenthal then followed with a brilliant summary reminding the Court that in this instance, due to the type of discrimination brought about by FPTP, the Court was obliged them to act, and that the level of discrimination was much, much greater than in Figueroa, a seminal decision by the Supreme Court of Canada in which the Court decided to intervene.

Based on the oral arguments, it was clear that our lawyers had out performed the Crown. Will this be enough to get the decision we are looking for? We'll know sixty to ninety days from now.

Thanks to Julius and Peter for a brilliant performance.

Monday, February 7, 2011

The Democratic Legitimacy of the Quebec Government Challenged in Court

Montreal, February 7, 2011 – Lawyers Julius Grey, representing the Association for the Advancement of Democratic Rights (AADR), and Peter Rosenthal, representing Fair Vote Canada and Elizabeth May, leader of the Green Party of Canada, will present their arguments in the Quebec Court of Appeal in Montreal, Édifice Ernest-Cormier, 100 rue Notre-Dame Est, February 8, 2011, at 9:30 a.m. to have the current voting system declared unconstitutional.

A press conference will be held in the foyer of Édifice Ernest-Cormier February 8 at 9:00 a.m.

According to the President of the AADR, Patrick Daoust, "the current electoral system discards the majority of votes. As a result, following an election the government rarely has the support of the majority of the electorate but governs as if it had a majority."

Legal arguments will focus specifically on the manner that the voting system discriminates against supporters of smaller political parties, women, and members of cultural communities, and how the system functions to produce electoral results that do not reflect the popular vote.

Mr. Daoust adds that "politicians have been promising to change the voting system for the last forty years. It’s time for the Court to intercede. At question is a fundamental principle of democracy, the equality of the vote, and it is time for the Court to declare that the representation given by the present system is not democratic."

For more information, please contact:

Patrick Daoust 514-659-7786
Green Party of Canada 613-240-8921
Fair Vote Canada Canada 905-903-2190

Thursday, February 3, 2011

First-Past-The-Post Discrimination Against Women To Be Challenged at Trial

Peter Rosenthal, the lawyer representing Elizabeth May in the Quebec Voting System Charter Challenge set to be heard at the Quebec Court of Appeal, will be bringing forth a new argument in the case. In short, he will argue that First-Past-The-Post (FPTP) discriminates against women since they are in general under represented in countries that use our voting system.

It will be interesting to see how the Court responds to his argument. The cited discrimination is well known and supported by the evidence submitted by the Crown's expert witness.

This argument will counter the lower court's dismissal of the plaintiff's claim that FPTP discriminates against the Anglophone and Allophone population. For example, in Quebec those ridings whet Anglophones and Allophones make up more than 20% of the electorate have on average 7% less voting power than the provincial average. As well, because of the wasted vote phenomenon playing out in these ridings, the participation rates in these voting districts is 13% lower than the provincial average.

In the lower court's decision, the presiding judge found that discrimination on a linguistic basis is not protected by Section 15 of the Charter.

However, this cannot be said of discrimination on the basis of gender, which is protected by Section 15 equality guarantees.

The case goes to trial on Feb. 8, 2011 at the Quebec Appeal Court of Appeal in Montreal. Of note, the Appeal Court rejected the Crown's request for a delay due to the possibility that the province's crown attorneys are set to go on strike.

Monday, January 31, 2011

Closing the Gap Between the Quebec Government and the Hapless Governed

On Feb. 8, the same day of our Court case concerning the democratic legitimacy of Quebec's electoral system is scheduled to be heard, that is if the crown attorneys don't go on strike before, we can expect to receive yet another speech from the throne.

As a hard core democrat, you can only imagine how I look forward to being reminded once again that I live under a neo-feudal regime.

This time around -- considering the overwhelming belief that corruption and collusion are widespread in Quebec and that the people want to have a public inquiry to bring things to light but are denied because the Premier who has the support of less than one in four electors refuses to hold one -- the distance between those who rule and those who are ruled never seemed to be so great.

From a democratic perspective, we are being ruled by a tyrant.

One of the fundamental principles of democracy is isocratia, the equality of political power, where citizens are willing and able to rule and be ruled. In the present context, we are governed by someone who wants to rule but refuses to be ruled by the demos, the people.

Apparently, in our political system which hasn't evolved qualitatively with respect to the concentration of political power in the hands of an elected monarch since the seventeenth century, we have no recourse other waiting it out for another chance to elect a different monarch.

Essentially, political power is dispersed among the people for about 12 hours during election day once every four years. Thereafter, it is usurped by professional politicians.

This doesn't need to be the case even in a representative democracy. In a proportional system, once a government has lost the the confidence of the people, as is now the case in Quebec, elected representatives from the smaller parties that comprise the ruling coalition can withdraw their support and put into motion a process to oust the ruling executive. This is now happening in Ireland where the Greens and a number of independents have set out to topple the government which they previously supported.

From the citizens' perspective, pressure can be mounted from within the political party by the members that can't be ignored by the elected deputies. Although this situation doesn't represent an equal distribution of political power, the distance between those who rule and those who rule is far less than in our present system.

As for the question of stability, if things are going badly why would a population desire for the state of affairs to continue?

The idea that countries that use a proportional voting system are plagued by political instability is a myth. Research shows that on average the duration of a ruling coalition in a proportional system is only slightly shorter than a majority government in a majoritarian system.

Hopefully, this time around the judges hearing our appeal of the lower court's refusal to grant us a declaratory judgment that seeks to have our present voting system declared unconstitutional will do so by affirming the fundamental principles of democracy.

Once that is done, we can move forward with plans to put our present political system, a vestige of the British empire, behind us and into history's dust bin.

Monday, January 24, 2011

Elizabeth May to Speak at The Democracy On Trial Fundraiser

Leader of the Green Party of Canada, Elizabeth May, has confirmed that she will speak at the Democracy On Trial Fundraiser. Ms. May joins Wayne Smith, Executive Director of Fair Vote Canada, Antony Hodgson, President of Fair Voting BC, and yours truly Brian Gibb, co-founder of the Association for the Advancement of Democratic Rights as the guest speakers.

Recently, Ms. May was granted intervener status and will have her arguments presented by accomplished constitutional lawyer Peter Rosenthal during the appeal of the lower court decision Gibb v. Attorney General of Quebec to be heard at the Quebec Court of Appeal in Montreal, Feb. 8, 2011.

During the last federal general election, approximately one million electors voted for the Greens, yet the Greens and their supporters were denied any representation in Parliament. Undoubtedly, Ms. May will address this glaring affront to the values of a free and democratic society.

Thursday, January 20, 2011

Electoral Reform Would Thrust Quebec Into the 21st Century

For the vast majority of Quebecers, the first decade of the 21st century was a lost decade on the political front. It's as if we are still living in the after shock of the 1995 referendum. Politics has taken on the hue of an old black and white film. In the absence of a credible guiding vision, we have regressed to an earlier time where graft, greed, and the lust for power permeate the entire political system from top to bottom, from the municipal to the federal level.

The last decade was the do nothing of significance decade. It's difficult to recall anything of importance. Bouchard retired and declared his doubts about Quebec sovereignty. We flirted with the ADQ and we endured the Liberals.

Ten years later, the mega hospital in Montreal still hasn't been built. School report cards went from number grades to letter grades and then back to numbers. There was talk of some grand development plans for the North, but nothing has gotten off the ground. Quebec City is still looking to replace it's lost NHL franchise and the Canadians didn't win the cup.

Did I forget anything? There was something about our public pension plan losing 40 billion dollars and what constituted reasonable respect for cultural differences, but we seem to have turned the page and moved on.

Moved on to what, I'm not sure. Politics in Quebec has become like an extended version of the film Ground Hog Day. Each morning we wake up and face the same choice between do we stay or do we go, and by the end of the day we still haven't decided only to wake up to the same choice the next day. Same old same old.

To break the loop, we need to cut our ties to the political system that keeps us there. The Westminster parliamentary system produces a bi-polar disorder. It keeps giving us the same options. Once in a century one of the options will change, but in the meantime politics become excruciatingly dull and predictable. No wonder less and less people bother to vote.

But things could be different. Political diversity could emerge. Everyone's vote could count. How quickly this comes about might depend on a decision to be rendered by Quebec's Court of Appeal shortly.