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Colby Cosh: The case that could prove Canadian elections were unconstitutional all along

Election Day
Election Day

A retired University of Toronto law professor, David Beatty, was given some acreage in the inferior national newspaper on Wednesday. Prof. Beatty sought space to attract greater attention to an ongoing application to the Ontario Superior Court that was first filed in 2019, as the federal election was winding down.

The chief applicant is Fair Voting B.C., an electoral reform thingy, and it is seeking a declaration that the Dominion of Canada’s “first-past-the-post” (FPTP) voting system violates the Charter of Rights and Freedoms. “Fair Voting British Columbia’s challenge to the Canada Election Act should be big news,” Beatty advises. “Its chances of winning are very good.”

This is attention-snagging, all right, even if you’ve already nodded off at the mention of election reform. An authority on the law is promising us that a court will decide, sooner or later, that every election held in Canada since 1982 was unconstitutional. Beatty would like to see the suit fast-tracked to the Supreme Court by the prime minister (yes, of Canada) to save time and expense. He may not exactly be speaking for Fair Voting B.C., which is using the application to fundraise with all the verve and tirelessness of an Ezra Levant.

Most of the application is devoted to making the argument for standing that a B.C. group will have to win in order to drag Canada into an Ontario court. And many of the actual arguments in the suit will be familiar to newspaper readers. But some have an innovative character.

For example, Fair Voting’s lawyers contend that “first past the post” procedures (probably best thought of as “most votes wins each riding”) discriminates improperly against people who have unpopular political beliefs according to Sec. 15 of the charter, the guarantee of equality before the law. Section 15 contains an explicit list of forbidden grounds for discrimination, and brave judges have added more “analogous” grounds over time (marital status, sex orientation) and rejected others (including poverty and imprisonment, along with the “substance orientation” ground argued daringly on behalf of a marijuana gourmand in R. v. Malmo-Levine).

This might strike you as an eccentric claim. Discrimination against people with less popular political views could be said to be the fundamental purpose of democracy. Fair Voting B.C. nonetheless advances the argument that “political affiliation/belief” ought to be counted as an analogous ground of discrimination. This would make discrimination against minority political beliefs — do I really need to assemble a grocery list with “neo-Nazis” and “QAnon” and “Hindutva” in it? — unconstitutional throughout Canadian law at all levels and in every regard. It would certainly make for an entertaining spectacle.

But, perhaps just to be safe, Fair Voting also argues that first-past-the-post elections also discriminate on the explicitly accepted bases of “sex, race and ethnicity.” “Specifically,” the application contends, “FPTP disadvantages women and racial and ethnic minorities in their attempts to become elected MPs.” The in-depth explanation of this claim is not provided in the bare application, and presumably will have to wait until Fair Voting’s favourite political scientists can cook something up.

The application does say, however, that “FPTP substantially interferes with the right to effective representation of voters who belong to minority communities, particularly those that geographically dispersed [sic], including Indigenous peoples.” Now this part is surprising, because House of Commons seats are disproportionately allocated to remote parts of Canada, including ones that have a lot of Indigenous folk.

I couldn’t find numbers more recent than the ones in the 2011 National Household Survey, but at that time, Aboriginal-Canadians lived in less populous federal ridings, and this inflated their total hypothetical voting strength by about one-quarter on average. There is a strong relationship between the share of self-identified Aboriginal-Canadians that a riding has and the weight of its votes. Labrador, to take one extreme example, has about a fourth the population of the average federal riding, and is 44 per cent Aboriginal.

This is a design feature, not a bug. Greater voting strength for Canadians in the bush and the Far North is an accepted principle of our elections, and one implicit reason for this is to encourage Aboriginal representation. And this isn’t just theoretical: political parties work to cater to Aboriginal voters in practice.

I have always taken the acceptability of this for granted, because the principle of “one man, one vote and the votes all count exactly the same” isn’t the only goal of an electoral system. For supporters of proportional representation, however, it is a paramount principle by definition. The application argues (as is usual with reformers) that almost any other electoral system is better than ours: ones with PR and party lists, or ones with transferable ballots, or “mixed-member proportional” schemes that preserve geographic constituencies but add free-floating members to take away any disproportionate power that large remote areas might enjoy.

The actual adoption of proportional representation would bring the curtain down, in other words, on the whole idea of sparsely peopled Labrador or Nunavut or Churchill-Keewatinook Aski having the share in Parliament that they have now. The discrimination we now practice in favour of these areas, and their Aboriginal denizens, would become impossible.

Of course we could fiddle with a PR system to restore the excess voting power of remote areas. By the same token, most of the foreign electoral systems that Fair Voting B.C. adores have vote-share thresholds that exclude very small parties from being represented at all, let alone proportionally. Most reformers will concede that they are comfortable with such forms of what they otherwise denounce as “election-rigging” and “discrimination.” This is surely one reason they have chronic trouble commanding our attention, let alone ever changing anything.

National Post

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