The first-past-the-post system — or as it is more formally known, the single member plurality (SMP) method — involves the election of one single member of Parliament from an individual, geographically-based constituency. That differs from systems in other countries that employ some form of proportional representation (PR), where seats are allocated based on the parties’ share of the overall vote.
The applicants, Fair Voting BC and the Springtime Collective for Democracy Society, claimed the SMP system was unconstitutional for two reasons — one, it violated s. 3 of the Charter, which guarantees every citizen the right to vote, because people who vote for a smaller party see their votes “wasted” under an SMP system, and two, the system violated the s. 15(1) guarantee of equality because women and racial minorities are more likely to vote for smaller parties.
But Ontario Superior Court Justice Edward Morgan ruled against the two groups.
“PR has its merits and its shortcomings, as do all electoral systems in a large and complex country, including SMP. To be sure, the Applicants have shown that PR would be a fair system,” he wrote in Fair Voting BC v. AG Canada, 2023 ONSC 6516, issued Nov. 30. “It is not, however, required by the Constitution. The existing SMP system is compliant with the Constitution and need not change.”
Justice Morgan wrote “one thing that is clear” from previous jurisprudence is that voting rights focus on the electoral process, not electoral outcomes.
“Effective representation has been interpreted by the Supreme Court to mean the right to participate in an election and to have a representative of your riding in Parliament,” he wrote. “It does not mean that the membership of Parliament must, as a matter of voters’ section 3 rights, reflect any specific outcome or the election of any specific form of government.”
While he accepted that the percentage of women in Parliament is “still too low” and adopting a PR system might bring change, Justice Morgan wrote that question is “remedial social policy, not a legal remedy.”
“Accordingly, if Canada could engage in a totalizing reform of systemically sexist practices and attitudes, a PR system and an SMP system would reflect those changes. It is entirely speculative to say which system would do better in that hypothetical world,” he wrote. “[And] the relative success of racialized communities in the political sphere is at best only tangentially related to the form that elections take.”
And Justice Morgan noted the Supreme Court has said “on a number of occasions” that one part of the Constitution cannot abrogate another part.
“Neither section 3 nor section 15 of the Charter can be invoked in a way that would hold one section of the Constitution violative of another,” he wrote. “The Applicants cannot, under the guise of a ‘living tree’ interpretation of the Constitution, strike out or interpret away constitutional principles which the Supreme Court has said remain valid. The metaphor of the living tree is a potent one in Canadian jurisprudence, but it has always been constrained by its natural limits.”
Nicolas Rouleau represented the appellants
“Virtually every voter under PR has access to an MP who's responsive to their claims and who can transmit these claims in Parliament, whereas under first-past-the-post, the majority of voters in a riding don’t have an MP who’s aligned with their choices and who can transmit their claims. So, essentially, after the vote they’ve got to sit out the rest of the Parliament and hope for the best next time,” he said. “And the evidence is effectively unequivocal that PR systems perform a lot better in terms of the election of women and minorities, so it is reflective of the broader population of a country.”
Rouleau said the ruling is being appealed.
“What we’re doing here is pushing forward. It’s not just about recognition of a better system than ours,” he said. “It’s about recognition that the system causes constitutional harm to the vote of a sizable component of the population and, for that reason, we’re compelled to go ahead to defend the rights of Canadians.”
Christine Van Geyn, litigation director for the Canadian Constitution Foundation (CCF), said she was happy with the result.
“Canada’s system of FPTP voting is not perfect — no electoral system is,” said Van Geyn, whose organization intervened in the case. “But the system cannot be ousted by the Charter through vague inference or implication. It is up to Parliament to decide if the system should be changed.”
And Kristopher Kinsinger of Jordan Honickman Barristers, who represented the CCF in court, said he was pleased Justice Morgan rejected the argument that judges can “strike out or interpret away constitutional principles which the Supreme Court has said remain valid” using the “living tree” doctrine.
“Justice Morgan recognized that the Charter is not an empty vessel to be filled with whatever meaning we might wish from time to time,” he said.
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