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.
Thursday, February 17, 2011
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.
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
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.
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.
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