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.