A Brief History of Democracy

Sunday, April 29, 2012

Canada's Courts Turn a Blind Eye towards Democratic Rights

To say that I am profoundly disappointed with Canada's judicial system would be an understatement.

As a citizen who incurred the risk of having to the pay court costs of having our petition concerning the constitutionality of the archaic first-past-the-post heard, at the very least I expected that the court would examine in earnest the expert witness testimony we put forward before arriving at a decision.

This was not the case.

In rendering previous landmark democratic rights cases, the Supreme Court of Canada has in effect created the principles of the right to effective representation and the right to meaningful participation in the electoral process as the cornerstones of article 3 of the Charter of Rights and Freedoms, the right to vote.

These principles came into play when considering the acceptable limits to the variation of the size of electoral districts (the democratic notion of one person one vote was rejected in favor of allowing significantly large variations in the size of electoral districts) and whether the government could prevent small political parties from having the name of their party appear along with the candidate's name on the ballot (this practice was considered to be antithetical to the values of a free and democratic society since it would reduce the number of votes a candidate would otherwise receive and was struck down).

You would think that given the nature of our legal system, the principles invoked to arrive at these decisions would then come into play when examining whether the voting system in use also respects the Charter's right to vote.

Yet, the Courts effectively sidestepped the question of whether the voting system respects the values of a free and democratic society.

It is not as if this question is far fetched. Over the last ten years, there have been four referendums in the provinces concerning the continued use of first-past-the-post and one in the United Kingdom. In no case was the governing party in favor of changing the voting method and in each referendum the will to change the method was defeated. Ironically, in the first B.C. Referendum, this was done with only 42% of the vote since the government that was elected with less than 50% of the vote imposed a supermajority threshold of 60%. 

In Quebec, there have been four public consultations on the question of the voting system and in each case the recommendation was made to abandon first-past-the-post. Moreover, the current Premier of Quebec, Jean Charest, promised to introduce elements of proportionality into the system but reneged on his promise.

At the same time, political parties that have garnered less than 40% of the popular vote cast, which given the low participation rates means less than 25% of the eligible voters, rule as if they had the support of the majority.

Considering the level of democratic disenchantment within Quebec and the rest of Canada, you would think that in would be in the best interest of the nation to examine the question seriously.

Not so.

After first having to go to court to decide if the motion we were putting before the court to have the first-past-the-post method declared unconstitutional was judicable (we won that round), we then had that decision overturned when presenting our arguments on the substance of the question at Quebec's Superior Court. The judge's egregious error was corrected when the Quebec Appeal Court re-affirmed the admissibility of our motion but the judges at the Appeal Court upheld the dubious reasoning of the lower court and added their own dubious assertions.

In short, the Superior Court judge asserted that our democratic rights had not been violated because we were able to participate in the electoral process as voters and as candidates. That the electoral process might in itself be in violation of our democratic rights seeing that it rendered the majority of votes to be ineffective totally escaped the judge. In fact, this was well documented both empirically and mathematically in our expert testimony, but was totally ignored as he cited only one of the government's expert witnesses in making his decision.

The Appeal Court judges went even further. First, they upheld the lower court judge's decision to base his decision on one sole expert. Then, they reaffirmed the validity of his arguments by making outrageous statements that are entirely antithetical to democratic principles.

At issue was the fact that all electoral systems will have some level of distortion translating the popular vote into seats. This is of mathematical fact since the distribution of a large number of votes will never fit perfectly into a limited, smaller number of seats. However, there is a huge difference between distortions that are caused by arithmetic rounding and distortions caused by throwing out votes. The former is inescapable, the latter is a matter of choice.

Indeed, the Appeal Court judges went as far as to say that it was not sufficient to demonstrate that first-past-the-post engendered large anomalies, for example that almost a million votes for the Green Party of Canada produced no representation in the 2006 federal election, and that it is a regular feature of this voting method where a party that garners less votes than another goes on to form a majority government in a complete reversal of the electoral result.

I understand that these anomalies would not be sufficient to demonstrate the illegitimacy of an oligarchy, but they are totally unacceptable with regard to the principles of a democracy.

At some level upon receiving this questionable decision from the Appeal Court, I rationalized that since our principle arguments were based on the jurisprudence from the Supreme Court of Canada, the Appeal Court was opting for the default option of rejecting our demand and leaving it up to the Supreme Court to decide. 

What I have difficulty accepting is that the Supreme Court would decide not to hear our case and leave this dubious jurisprudence from the Quebec Courts in place uncorrected.

If our assertions are incorrect, as citizens we have the right to know why.

As it stands, we are left with the impression that faced with the choice of defending our democratic rights and accepting the doubtful post-hoc reasoning from the Quebec Courts that would deny them, the Supreme Court opted for the latter. In reality, we will never know since the Supreme Court is not required to provide a justification for dismissing an appeal.

So that's it. It's over. We have taken a fundamental question with regard to the democratic legitimacy of our political system to the courts and had our concerns brushed aside.

 Life goes on.

Shortly, there will be another general election in Quebec and I will not be able to participate meaningfully in the electoral process since my vote will be totally ineffective. As well, after it's over, since there is no mechanism to aggregate votes in the voting system, I will take my place with hundreds of thousands of fellow citizens in Quebec that will be denied effective representation.

Indeed, why bother voting? The act would just reinforce my deep feeling that my democratic rights are not being respected and that I am participating in a political farce.

Le Quebec, Le Canada, vous me tuez!

Friday, April 20, 2012

Democratic Despair

Help! I feel like I'm trapped in a time warp. This is the 21st century, but where I live, it feels like we are trapped in the nineteenth.

In my province, there are presently seventeen investigations being conducted by the province's anti corruption squad. It is readily apparent that public money destined for construction projects is routinely repurposed to fund the political campaigns of those who dole out the contracts.

In my city, the police are dressed like storm troopers breaking up student demonstrations protesting a 75% increase in tuition fees with tear gas and night sticks. Ironically, the Minister of Education announces that she won't meet with the largest student group unless its members denounce the use of violence.

The Premier of the province is out hustling his plan for the north, hoping that he can pull the wool over everyone's eyes long enough so that he can call a general election before the judicial inquiry investigating the links between the construction industry and the financing of political parties begins its public audiences.

And he might be able to pull it off since our electoral system uses the archaic first-past-the-post voting system in which the popular vote doesn't necessarily determine the outcome in multiparty elections. Indeed, if the opposition parties split the vote, his party could form a majority government with less than 30% of the vote.

No wonder the Premier reneged on his promise to change the voting method. It allows him and his cronies to finance political campaigns with a percentage of taxpayer money destined for public works. He gets to stay in power and his buddies get stinking rich.

In fact, his great plan for the economic development of Quebec's northern territory takes his kickback scheme to another level. Never mind limiting ourselves to repairing roads, bridges, and sewers, let us pile on the public debt in a vast infrastructure project and let future generations pay for it. This is Montreal's Olympic stadium fiasco taken province wide. It has already begun with the use of public funds to build a new hockey arena in Quebec City.

Using the only means at my disposition, I took the province to Court to contest the constitutionality of its voting system, but I forget that judicial appointments are also part of the political process. Historically, a lawyer needs to have at least ten years of practice and have made significant financial contributions to the political party in power if he or she wants to have a real chance of being appointed to the bench.

Where I live, our local deputy said publicly that he was just doing his job when he approached the Minister of Justice to seek a judicial appointment for the son of his party's chief organizer in our region. Moreover, we recently learned that the resumes of candidates for judicial appointments were routinely forwarded to the Premier with post-it notes attached indicating the applicant's political affiliation.

So, in retrospect, I shouldn't be surprised that in our case both the Superior Court and the Court of Appeal rejected our motion without even a word with regard to our expert testimony. Their minds were already made up and they engaged in post-hoc rationalization.

Thank you. Good bye. Next.

Our last hope is the Supreme Court of Canada. Presently, we are waiting to find out whether it will hear our appeal. Unfortunately, when I look at federal politics, I see the same pattern emerging: defense contractors lobby the Department of Defense for the procurement of F-35 fighter jets, the Department willfully low balls the costs (14 instead of 25 billion dollars), the government refuses to provide the necessary information, it is found in contempt of Parliament, a general election is called, the ruling party is returned with a majority government with only 39% of the popular vote.

As you can see, there are some big bucks at play and the whole system depends on being able to leverage a less than a majority portion of the popular vote into a majority government. In short, money trumps democracy.

So, what are the chances of getting the cornerstone of the entire system declared unconstitutional?

On my bad days, like the day after I saw students getting beaten by baton wielding police for protesting at of all places a university, a place where dialogue and the rigor of arguments should carry the day, not fucking likely.

Monday, January 16, 2012

Confronting Cognitive Bias on the Bench

Having had some time to reflect on the latest decision from the Quebec Court of Appeal that rejects our motion to have the first-past-the-post voting system declared unconstitutional and while waiting to see if the Supreme Court of Canada will hear our appeal, I recently read Daniel Kahneman's best-selling book, Thinking, Fast and Slow.

It is a masterpiece detailing how heuristics and cognitive bias come into play in judgements and decision making. I can't help but think that the key to having a decision rendered on our behalf is to confront the cognitive bias we have been subjected at the lower courts. What follows is an analysis of how cognitive bias came into play in the judgment.

At first glance, it is somewhat disconcerting to have one's rational and empirical arguments that demonstrate first-past-the-post's glaring distortions of voting results to be dismissed without discussion by the simple maxim that it is not sufficient to show that the voting system creates distortions, even if it reverses the results of the popular vote and a political party that garners one million votes is denied any representation whatsoever.

In other words, it doesn't matter what evidence you present because the nature of your request requires us to declare that the voting system in place since confederation is not democratic.

Yes, that's it in a nutshell. Any voting system that allows a political party to assume the political power of the majority without having the support of the majority of the electorate is profoundly undemocratic.

It is at this point an affect bias enters into the deliberations. To render a judgement that deems that the electoral system is fundamentally undemocratic is to raise unsettling questions concerning the legitimacy of the system of governance in place. Indeed, this could be an undesirable turn of events that might impact upon the stability that we have known as a result of our political system.

Thereafter, a second cognitive bias, the aversion to loss, comes into play: better the devil you know than the devil you don't. Effectively, to declare the present voting system unconstitutional would force the Quebec government, the federal government, and the other provincial and territorial governments into the unknown, seeing that they would have to put an alternative voting method into place. This process could bring about some unintended consequences whose negative effects would outweigh the positive results of having better representation.

Doing a quick risk analysis, the judges could reasonably conclude that since no voting system is perfect and the one in place has served us well over the years, it is not worth the risk to force a societal change upon Canadians regardless of the opportunities for better governance that a new voting system might entail.

Finally, to dismiss the motion all that needs to be done is to perform a simple heuristic substitution: replace the the concept of democratic rule with the belief that the oligarchic rule that is presently in place is in fact democratic. If you tell a big lie often enough, people will believe it. That way, it can be shown that the present voting system is not discriminatory since the systemic distortions inherent to first-past-the-post are available for the benefit of the supporters of any political party. The ability to form a false majority is transferable. Live by the sword; die by the sword.

In closing, if we are to have our motion for a declaratory judgment granted, we will have to confront and overcome the cognitive bias we have experienced at the lower courts. Hopefully, the Supreme Court will afford us the opportunity.