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!

1 comment:

  1. Brian Gib:

    Well written account!

    I made this short movie for Canada:

    I'm in Toronto, and don't know many, er, any professional Canadian French voice actors. I'd like to do the Francaphone version of the sound-track, complete with an equivalent really bad Canadian-English accent for the Lumberjack. Can you hook me up with someone who could help cast this project?