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.