Electoral Reform needs better PR (Part III)

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[This the third of a three-part Post. In Part I, I proposed an alternative electoral system that provides locally proportional representation (LPR). LPR works by weighting legislators’ votes in the legislature according to the number of votes they received in the election. In Part II, I discussed the possibility of defining ridings based on criteria in addition to location. Where those two Parts were suggestions for law reform, this Part is more of a discussion of the role of Courts. It builds on both the previous Parts.]

Introduction

This post’s thesis is straightforward: the laws implementing the current electoral system at the federal and provincial level unjustifiably infringe the right to vote in s 3 of the Charter. I had hoped there could be a straight line path to that argument, but the existing thicket of Supreme Court jurisprudence requires some bushwacking. So the post will proceed as follows: first, it will look at both what the scope of the s 3 right should be and what the Supreme Court has instead held it was. Second, it will identify how the current First Past the Post (FPTP) system infringes the right to vote the various justifications that have or could be advanced in defence of FPTP. Third, it’ll identify the (related) problems with the current districting system. There’s a TL;DR at the bottom, if you want to skip to the take-aways.

NB: When I first planned this trilogy of posts, I didn’t know there was actually a real charter challenge to FPTP in the works. It’ll be interesting to see how they approach this!

The scope of the right

This section, addresses the scope of the “right to vote” under s 3. First, I discuss the general objective of defining the scope of a right, and how that gets complicated by rights that involve equality between rights-holders. Then, I narrow in on s 3. As I explain, my preferred answer to the scope of s 3 is to say that any distinction between voters infringes the right, and the merits of the infringement should be handled under s 1. I also present some alternative theories for how the scope of the right can be defined.

The scope of a right, generally

The scope of any Charter right dictates which laws infringe the right, and which laws do not. The courts have articulated various factors that should inform the scope of any Charter right. In Big M Drug Mart, for example, Dickson J explained that courts are to look “to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter1R v Big M Drug Mart Ltd, [1985] 1 SCR 295, 344. These factors are quite helpful at identifying situations where the right or freedom is violated and so the law must be struck down.

These factors are less useful, however, at identifying situations where the right or freedom is not violated and so the law must be upheld. In Charter law generally, courts have two options to uphold an impugned law: say that the law does not infringe a right at all;2In Charter parlance an “infringed” right is only “violated” if the infringement is not “justified” or say that the law may infringe the right but if it does, the infringement is justified per s 1. The Big M Drug Mart factors are a poor guide to deciding the scope of a right in such a situation — the historical origins and larger objects of the Charter are just as well served by upholding the law as non-infringing as by upholding it as infringing-but-justified. The text, however, can be a useful guide, as can the overall scheme of the Charter.

The rights-conferring provisions of the Charter suggest that some rights have internal normative limits, but others do not. The first category includes, inter alia, the s 8 “right to be secure against unreasonable search or seizure”; the s 9 “right not to be arbitrarily detained or imprisoned; the s 10 “the right to be informed promptly” of the reasons for an arrest or detention; the s 11(b) right to be “tried within a reasonable time”; and the s 23 right to have children receive school instruction in a minority language “wherever the number of children… is sufficient to warrant the provision to them” (s 23(3)(a)). I call these normative limits, because each of them embeds a judgment call about where to draw the line between “reasonable” and “unreasonable”, and an inquiry into reasonableness generally takes into account the justifications a government may have for its actions. By contrast, the freedoms in s 2, the democratic rights in ss 2-5, much of the mobility rights in s 6, the legal rights in s 12-14, the equality rights of s 15, and the language rights in ss 16-20 all lack language of that sort. The Charter could have been written to put such limits on those rights; it wasn’t.

I do not mean to suggest there are no limits on such rights, but only that the limits should not be in the nature of a point on a scale called “enough”. Instead, such rights should be limited only by intelligible categorical principles.

A good example of an intelligible categorical principle limiting the scope of a right came in Ktunaxa3Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (whether this is a good example of a rightful principle is a separate question). The majority of the Court there found the s 2(a) of the Charter protected the freedom “to hold a religious belief” and the freedom “to manifest that belief”, but not the presence of the Grizzly Bear Spirit in the Ktunaxa’s traditional territory of Qat’muk4at para 70. A ski resort development was thus allowed to proceed on that territory, despite the Ktunaxa’s belief that this would drive the Grizzly Bear Spirit away5at para 59. The principle here, that the freedom protects only one’s own thoughts (holding a belief) and actions (manifesting that belief), can be intelligibly extended. If the Ktunaxa followed the case by blockading the ski resort development to protect the Great Bear Spirit, then imprisoning them for this would infringe the Ktunaxa’s s 2(a) freedoms (but the infringement may be saved by s 1). It also follows from Ktunaxa that Rowe J was mostly correct in TWU: the protection of s 2(a) did not apply to the University’s covenant because the covenant dictated that non-adherents act in accordance to another groups’ religious beliefs.6“[w]here the protection of s. 2(a) is sought for a belief or practice that constrains the conduct of nonbelievers — in other words, those who have freely chosen not to believe — the claim falls outside the scope of the freedom.” Law Society of British Columbia v Trinity Western University, 2018 SCC 32 at para 239. He was only mostly correct, because a sufficiently illiberal religious belief could mandate constraining the conduct of nonbelievers. In that case, if the state prevents the manifestation of the belief then it would seem to infringe s 2(a), but the prevention would presumably be justified because it protects the Charter values associated with s 2(a) for non-believers.

By contrast, the story of equality rights seems largely to be the story of a failed search for intelligible categorical principles to limit the scope of the right. Once one gets away from “formal” equality (which is trivially easy to abuse), the question becomes what does equality mean in substance. And there appears to be no context-free principle that can drive that answer: substantive equality depends on what the actual consequences of the law are, why the law was put in place, and whether any distinction that emerges between groups who are meant to be equal is rightful.7See Fraser v Canada (Attorney General), 2020 SCC 28 at paras 42, 53, 81; see also Richard Moon, (2021) “Comment on Fraser v Canada (AG): The More Things ChangeConstitutional Forum constitutionnel 30:2; Joshua Sealy-Harrington (2021) “The Alchemy of Equality Rights“, Constitutional Forum constitutionnel 30:2. Incidentally, although this discussion is most obviously related to laws prohibiting discrimination toward groups or individuals, I’d suggest it’s equally applicable to treaties prohibiting discrimination toward goods based on national origin. Although there are some rules that would identify discrimination without false negatives (e.g., laws banning all fish from Japan); I do not know of any rules that could take any distinction and clearly identify when the distinction is not discriminatory. This type of analysis is the bread and butter of s 1 and is properly placed there, and indeed, that is the modern (post-Fraser) approach to equality rights. Find a distinction in substance, then address whether that distinction is defensible in s 1. As I’ll explain, this is relevant to s 3.

The scope of s 3

The starting point for the scope of a right is the text.8R v Poulin, 2019 SCC 47 at para 64 Section 3 of the Charter states:

Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

Only the first part matters here: every citizen has the right to vote in an election of members of the [legislatures]. There is no internal limit evident on the right to vote in this text. At a bare minimum, the right to vote includes the right to cast a ballot.

We can also consider the purpose of the section. The purpose of a vote may be symbolic but it is clearly not only symbolic: the right to vote’s importance relates to how the citizenry can ensure Parliament acts responsibly in its exercise of sovereign power. With that in mind, there are some obvious extensions from “the right to cast a ballot”. These include:

  • The right to have ones ballot counted (because otherwise a vote is meaningless)
  • The right to have a choice of candidates to vote for (because otherwise a vote is meaningless)
  • The right to be not subject to coercive pressure regarding for whom to vote (because otherwise a vote does not serve a democratic function)
  • The right to know relevant information about the candidates (because otherwise voters may not be able to hold anyone to account)

Additionally, it’s clear that if one citizen’s vote was worth 10,000x the vote of another citizen, then the latter’s right to vote would be infringed. Although the latter would still be able to vote, the latter’s vote would be so grossly outweighed by the former that it may as well not exist. This principle can be extended downward from such gross disproportionately by observing a general rule: an increase in any one person’s voting power diminishes the voting power of another. This is important, because each citizen is allocated the same right. If this right includes “voting power”, then the only way all citizens hold the same right is for them to hold an equal right to vote.

An approach of this nature was followed in one of the very first s 3 cases, Dixon9Dixon v British Columbia (Attorney General) (1989), 59 DLR (4th) 247 (BCSC), 1989 CanLII 248. With the acquiescence of the Attorney General of British Columbia, McLachlin CJSCBC (as then she was) held that the right to vote had at least ten different aspects:10Admittedly, this enumeration could be improved. #1 should be simply “the right to cast a ballot” (with what grounds are acceptable for preventing a ballot being cast coming in in s 1: see, e.g., Fitzgerald v Alberta, 2002 ABQB 1086); #3 might instead be “the right to cast a ballot free of extrinsic consequences” (secrecy is a method for this); #5 might strike “in a district” to make the definition of the right impervious to voting systems, etc.

1. The right not to, be denied the franchise on the grounds of race, sex, educational qualification or other unjustifiable criteria;

2. The right to be presented with a choice of candidates or parties;

3. The right to a secret ballot;

4. The right to have one’s vote counted;

5. The right to have one’s vote count for the same as other valid votes cast in a district;

6. The right to sufficient information about public policies to permit an informed decision;

7. The right to be represented by a candidate with at least a plurality of votes in a district;

8. The right to vote in periodic elections; and

9. The right to cast one’s vote in an electoral system which has not been “gerrymandered” — that is, deliberately engineered so as to favour one political party over another.

[10.] … [E]quality of voting power[.] … The claim of our forefathers to representation by populations — “rep by pop” — preceded Confederation and was confirmed by it.

Dixon at 16

Unfortunately, the Supreme Court hasn’t followed this approach. What they did instead is the topic of the next section.

The Supreme Court’s approach to s 3

The foundational SCC case on voting rights is the Boundaries Reference 11Reference re Prov Electoral Boundaries (Sask), [1991] 2 SCR 158; I gather the conventional short name for this case is Carter (see, e.g., Reference re the Final Report of the Electoral Boundaries Commission, 2017 NSCA 10), and it’s listed as such in CanLII search results too, as an alias for its proper style of cause. Because there’s now two other SCC decisions called Carter, using that as the name seems unduly arcane and inaccessible. Writing for the 6-judge majority, McLachlin J treated the question of the scope of s 3 as a choice between “guarantee[ing] equality of voting power” and “guarantee[ing] effective representation”.12This case is one of those unfortunate ones where there are neither page numbers nor paragraph numbers on CanLII. I’ll try to use direct quotes instead. She chose the latter.

What does “guarantee[ing] effective representation” mean? The Boundaries Reference majority identified two elements: “having a voice in the deliberations of government” (aka “legislative power”) and “the right to bring one’s grievances and concerns to the attention of one’s government representative”. The majority further explained that “relative parity of voting power” is of “prime importance” because it reduces the risk of providing inadequate representation to the citizen. This approach thus builds the idea of “equality of voting power” into the core of s 3, but for instrumental reasons (equality of voting power creates effective representation), not direct reasons.

The majority partly favoured “effective representation” over “equality of voting power” for at least three reasons. First, it saw “absolute parity” as “impossible”, because the number of voters will vary from any census time to election time. Second, it viewed the goal of the Charter as to affirm the existing Commonwealth system of effective representation, rather than to import American ideals of one-person, one-vote; it saw the intention of s 3 to be “pragmati[c]”, rather than ideologically purist. It finally explained that “the values and principles animating a free and democratic society are arguably best served by a definition that places effective representation at the heart of the right to vote”.

The Boundaries Reference majority also outlined various characteristics of “effective representation” that justified departures from parity of voting power, despite its “prime importance”:

  1. Taking into account “geography, community history, community interests and minority representation”;
  2. “Ensur[ing] that our legislative assemblies effectively represent the diversity of our social mosaic” or “enhanc[ing] the participation of individuals in the electoral process”; and
  3. “Recogniz[ing] cultural and group identity”.

According to the majority, these and possibly other factors that “contribute to better government of the populace” are the only bases that can justify diluting a vote.

After the Boundaries Reference, the Court continued to examine the s 3 right to vote, including in Sauvé 1 13Sauvé v Canada (Attorney General), [1993] 2 SCR 438 and 214Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68 (Both regarding the right of prisoners to vote), Haig15Haig v Canada; Haig v Canada (Chief Electoral Officer), [1993] 2 SCR 995(relating to the right to cast a ballot in a constitutional referendum), Figueroa16Figueroa v Canada (Attorney General), 2003 SCC 37 (relating to tax-treatment of minor political parties), and Frank17Frank v Canada (Attorney General), 2019 SCC 1 (relating to non-resident voting rights).18Other SCC s 3 cases concerned ancillary issues to this topic, including those related to: who can stand for election (Harvey v New Brunswick (Attorney General), [1996] 2 SCR 876); election finance (such as Libman v Quebec (Attorney General), [1997] 3 SCR 569; and Harper v Canada (Attorney General), 2004 SCC 33); and s 2(b) infringements allegedly justified by voting concerns (such as Thomson Newspapers Co v Canada (Attorney General), [1998] 1 SCR 877 or R v Bryan, 2007 SCC 12) [/mfn]. Of these, Sauvé 2 and Figueroa are the most significant.

A decade after the Boundaries Reference, the Court began to back away from its ratio. In Sauvé 2, McLachlin CJC, again writing for the majority, emphasized that rights should be defined “broadly and liberally”, and that this is “particularly critical in the case of the right to vote”19at para 11. Chief Justice McLachlin further held that “s. 3 must be construed as it reads, and its ambit should not be limited by countervailing collective concerns, as the government appears to argue. These concerns are for the government to raise under s. 1 in justifying the limits it has imposed on the right.”20at para 11 Despite this language, Sauvé 2 does not explicitly overrule the Boundaries Reference.

Figueroa continued the move away from the Boundaries Reference, although it too does not explicitly overturn it. After discussing the Boundaries Reference for 5 paragraphs, Figueroa abandons its framing in favour of the “right to play a meaningful role in the electoral process” language first employed in Haig. Figueroa also explicitly reserved “countervailing collective concerns” for consideration under s 1 rather than as part of the s 3 inquiry.21at para 33. The Court has since affirmed Figueroa‘s approach as describing “[t]he fundamental purpose of s. 3”.22Opitz v Wrzesnewskyj, 2012 SCC 55 at para 28

The enduring relevance of the Boundaries Reference is thus unclear. It has never been explicitly overturned, but the Court has departed significantly from its analysis in later cases. A reasonable view would be that the closer an alleged infringement is related to districting, the greater the authority of the Boundaries Reference.23See, e.g., Reference re the Final Report of the Electoral Boundaries Commission, 2017 NSCA 10 As I discussed in the Introduction to Part II, there is a strong relationship between choice of voting system and districting, so the Boundaries Reference cannot be completely ignored; but also, it’s not clearly determinative. I’m going to proceed by assessing both the Boundaries Reference and Figueroa treatments of s 3.

Assessing the Supreme Court’s approach

The scope of s 3 as described in the Boundaries Reference has multiple problems, some of which were resolved in Figueroa.

The first problem is that a right to “effective representation” is unsupported by the text of s 3. The text defines a right to take an action, not a right to a certain result.

The second problem is that effective representation can arguably be achieved without voting, so focusing on “effective representation” could undercut the action s 3 was drafted to protect. For example, municipal councils sometimes fill vacant seats by appointment rather than by by-election. One could often rightly say the ward resident are “effectively represented” by the new council member — but their representation was not caused by their vote.

These two issues are resolved by Figueroa‘s refinement. The right “to play a meaningful role in the electoral process” is an action, not a result of the action, and so it preserves the participatory nature of a right “to vote”. Problems, nonetheless, persist.

One persisting problem is that both on either Boundary Reference‘s framing Figueroa‘s, population growth would seem to undermine the right. Consider especially the Boundary Reference‘s reliance on the ombudsman role of the legislator. As the Boundaries Reference describes it, the ombudsman role is distinct from the role of the legislator and concerns the provision of “assistance” to constituents rather than a voice in the legislative process.24Providing assistance to a constituent’s immediate needs can obviously feed into legislative choices, but it’s nonetheless useful to separate them.

This role is prized by many individuals but unproductive and inequitable in the larger picture. It’s unproductive in part because population is increasing, but the number of representatives are not. The following graph shows the number of citizens per member of parliament at each election since Confederation:

That number started by going up, and it hasn’t stopped since. Relying on MPs to act as ombudsmen is unproductive, because they should surely be worse (per constituent) at it as time goes on. And at the same time, the relationship between individual constituent-service and electoral outcomes is also attenuated by increased population — and it’s this mechanism that historically made MPs a useful portal into remedying the injustices of government. Today, we have internal civil service mechanisms and if that fails, then the courts and judicial review.

An alternative, of course, would be to increase the number of representatives to keep the citizens per MP steady. How many? Holding the level of ombudsman attention constant at 1984 levels would require adding a solid 100 MPs. We could do that, but more likely would be that instead MPs would hire more staff, which takes the role from “ombudsman” to “manager of a bureaucracy of ombudsman”, which again would attenuate the connection between MPs and constituents.

And if the answer is “having a bureaucracy of ombudsman”, why would we have 338 individual, duplicative, inconsistent bureaucracies, we could simply have one, actually robust bureaucracy, run by the civil service? Especially when people require accommodations for language or disability to access the ombudsman service, locating it within MP’s office risks excluding such people from the service. Moreover, the overlapping jurisdictions in Canada can make it generally opaque to a citizen who precisely is responsible. How many complaints do MPs get that are properly matters of provincial politics, that they lack the power to do anything about? The ombudsman function is undoubtedly important, but leaving it up to MPs risks the function being under-supplied and ultimately who gets served by it being arbitrary, based on the interest of the individual MP in that aspect of the work. Building that into the core of the right to vote seems inadvisable.

The problem of population growth doesn’t disappear with Figueroa. As I’ll discuss further below, the greater the number of electors per MP, the less meaningful the role any individual plays in the electoral process. And raising the number of MPs does not change that so much as make each MPs’ vote relatively less meaningful.

The way to fix this problem is to redefine the right comparatively to other voters. Using Figueroa‘s language, the right to vote ought to be defined as to have as meaningful a role in the electoral process as any other voter.

A second persisting problem is that the right as defined in both the Boundaries Reference and Figueroa is subject to a fundamentally arbitrary limit. They both create a binary (is the representation “effective” or not) out of what even the Boundaries Reference recognizes as a scalar variable (how effective is the representation). As I discussed above regarding the scope of a right, when something can be measured as a scalar, it makes most sense to put ‘any infringement’ at the 0-point on the scale and then talk about ‘how infringing’ it is, and whether the justifications advanced for that infringement are appropriate.25On this understanding, many laws have infringe the Charter trivially and can be equally trivially justified by the laws’ purposes. This type of analysis is fundamental to the s 1 inquiry into whether a law is “minimally impairing” and whether an alternative would be less or more impairing.

The Boundaries Reference‘s defence of its approach is unconvincing. It says that the Charter was not intended to invalidate the current electoral system and so the scope of s 3 must be determined pragmatically rather than idealistically. This defence is both unsound and erroneous on the text of the Charter.

This defence is unsound because s 1 exists: even if s 3 is given a robust, ideals-based interpretation, it would not necessarily mean the existing system was impossible. The existing system could be justified under s 1. Indeed, as I discussed in above regarding the scope of rights generally, the Charter involves many ideals-based rights, with pragmatic considerations left for consideration under s 1. Section 1 is the core way that Canadians’ choice to reject the American Bill of Rights model is embedded in the Charter.

The Boundaries Reference defence of imposing internal limits on s 3 rather than considering those limits under s 1 is also nonsensical on the text of the Charter. Its defence is in part that “[t]he circumstances leading to the adoption of the Charter negate any intention to reject existing democratic institutions.” That may be, but on the text of s 3 existing democratic institutions are already infringing the s 3 right. For example, Section 3 grants rights to “[e]very citizen”, not “every citizen of age of majority”. Plainly, s 3 was not intended to eliminate voting age laws and make it possible for squalling citizen-infants to cast a ballot — but the text states plainly that they have a right to. The only plausible explanation is that the Charter was relying on s 1 to temper the ideals expressed in s 3. If the first two words of s 3 (“Every citizen”) only make sense in light of s 1, why would the same not hold true for the sixth through ninth words (“the right to vote”)?

A third persisting problem is that the s 3 right is an individual right, but the Court builds collective considerations into it. The s 3 right is held by a “citizen”, not a group. In the Boundaries Reference,26Figueroa seems to agree on this point: see paras 24, 33 the Court nonetheless holds that parity between voters (which the Boundaries Reference says is of “prime importance”) can be deviated from for various interests that are fundamentally about groups: “geography, community history, community interests and minority representation” and reflecting “cultural and group identity”.27As this is recast in Figueroa, such matters are not directly relevant themselves but rather are things that may not prevent voters from being effectively represented (or able to play a meaningful role in the election). The problem with Figueroa‘s reframing is that, taken seriously, it would leave open the door to abuse of s 3. Figueroa‘s reframing makes the reason for inequities in voting power immaterial: so long as the result is that disadvantaged voters can play as meaningful a role as urban voters can today, it does not matter whether the reason for the disadvantage is good or proportional. For example, on Figueroa‘s reasoning it should be possible to create districts that “pack” Indigenous persons into them and so minimized Indigenous votes without infringing s 3 (so long as the packing was no worse than the present packing of urban voters). For some voters, their ability to play a meaningful role in democracy may be enhanced by boundary definitions that respect their cultural and group identity; for voters who are not part of those groups, however, their ability will be diminished (over some alternative districting layout). Enhancing one person’s right to vote is a strong reason to diminish another’s right to vote, especially when there are national-level collective problems — but that diminishment should be properly seen as an infringement that is demonstrably justified, not not-an-infringement at all. On a similar note, matters that “contribute to better government of the populace” should similarly be properly considered in s 1.

The unfortunate irony is that these problems would largely have been avoided if McLachlin J (in the Boundaries Reference) or McLachlin CJ (in Sauvé 2) had adopted the excellent reasons of McLachlin CJSCBC in Dixon. That is not where we are now, though, so I’ll proceed with using the present SCC approaches to analyse infringements and justifications of the current electoral system (FPTP) and the current districting arrangements.

Infringement by FPTP

Defining an infringement by the current electoral system (FPTP) obviously depends on the definition of the scope of right.

On the Boundaries Reference definition, an infringement occurs when there’s not “effective representation”. In the 2021 election, 8.15M Canadians voted for their eventual MP. We can say those Canadians are effectively represented.28See spreadsheet, tab “NonEffectiveRepresentation”. Data originally from Elections Canada But what about the rest? 8.89M Canadians voted for someone who didn’t become their MP — or put another way, most Canadian voters can’t point to anyone in Parliament and say “I elected them”. Are such people effectively represented?

Some might say yes, because a right to vote is not a right for your preferred candidate to win the vote.29yet another example of how “effective representation” is a poor formulation of the right to vote! That some people will lose a vote has been an inevitable part of voting30Notably, it’s not inevitable under LPR or any other proportional systems using ranked ballots. But even they should admit that it is more deeply troubling when it is pervasive. There seems to be something perverse when most voters’ preferred candidates lose. One obvious rebuttal is to say that representatives are meant to represent the entire district, even the people who do not vote for them. That may well be true for the (overrated) ombudsman aspect of “effective representation”, but it has no bearing on the “having a voice in the deliberations of government” part of effective representation. The second obvious rebuttal is to say voters don’t really vote for their local member, they vote for whomever their preferred party has put forward. This is of course correct for most Canadian voters. The problem, however, is that if you valorize party votes, then the current system is also wanting, because FPTP causes an overall disconnect between party numbers and national party vote numbers.31All systems, other than pure list proportionality have some disconnect, but FPTP’s disconnect is the largest Proponents of the current system cannot have it both ways, relying on national party outcomes to rebut complaints about ineffective local representation and on the importance of local representation to rebut complaints about disproportionate national party outcomes.

Taking this approach to infringement ends in a perhaps-unexpected location. Keeping the FPTP system as-is, this infringement could be removed by anti-competitive districting, because that would maximize the number of people who “win”. Note that if the districting commissions could do this perfectly with equal-sized seats, they would be effectively implementing proportional representation. Of course, that’s impossible — predictions of votes and actual votes are not the same (and that’s one of the major advantages of proportional representation: it allows people to vote differently from how they’re predicted to and for that to matter!).

The Figueroa understanding of the right to vote can be seen to include the above infringement and adds a second type. The key is the word “meaningful” in Figueroa‘s phrase “play a meaningful role in the legislative process”. What does “meaningful” mean? One might say that meaning inheres in the formal act of casting a ballot — but Figueroa goes beyond that, saying part of playing this role is “to enhance the quality of democracy in this country”32para 27 and implies that a purpose is to foster “full political debate [that] ensures that ours is an open society with the benefit of a broad range of ideas and opinions”33para 28.

Can we say that voters who voted for a losing candidate and who are therefore not represented in the legislature “play[ed] a meaningful role in the legislative process”? If “meaningful” is understood numerically or causally, so that it essentially means “material”, then surely not: the result would have been the same even if they had not voted. This would go too far. The chance of any individual changing the result of an election is nanoscopic; no vote is meaningful on that definition. A more plausible numbers-based formulation might imagine an individual as part of a set of individuals that is less than the whole community and ask whether that set can meaningfully influence results. This is getting somewhere, but only by making the definition of the “set” do a lot of work.

Rather than focus on numbers, one might instead focus on dignity. On a dignity-based approach to meaningfulness, we should not look to the consequences of a person’s vote, but rather how they are (and are seen as being) treated by the rest of society, particularly political actors. This emphasis is quite close to that of “effective representation”, but where “effective representation” looks at what happens after a vote, this looks at the circumstances before a vote. On this notion of meaningfulness, a vote is more meaningful when others (particularly political actors, but also media) treat that person’s vote as important or worthy of courting.

This approach to meaningfulness suggests that some voters whose candidates lost under FPTP played a meaningful role, but others didn’t. Let’s split voters for losing candidates into four groups:

  1. Losing voters who sometime recently voted for a winning candidate
    1. … despite their policy preferences not significantly changing; or
    2. … because their policy preferences significantly changed; and
  2. Losing voters who haven’t recently for a winning candidate
    1. … because they have idiosyncratic preferences (on a national level); or
    2. … because they have idiosyncratic preferences locally.

Group 1.1 is the least likely to be suffering infringements on this dignity-based interpretation of Figueroa. Group 1.1 represents a prototypical “swing” voter in a swing riding. They might swing to the losing side sometimes, but it is their (not-that-collective) action that most directly tips legislative outcomes. From a numerical side, that suggests they’ve played a numerically meaningful role. And because of that numerical importance, we can expect swing voters to be courted assiduously: that suggests they’ve also played a meaningful role from a dignity perspective.

The other groups appear more likely to be suffering an infringement. Group 2.1 represents a Rhinoceros Party voter: someone whose vote is itself a protest against the existing system, and with the current number of MPs, there’s simply not enough other people who agree with them for them to be represented. There is some infringement caused by the voting system against Group 2.1, but it is only because FPTP provides no mechanism to count idiosyncratic voters’ secondary, less-idiosyncratic preferences, such as a ranked ballot (because that would allow them to play a more meaningful role). With a ranked ballot, parties and other actors would have greater reason to seek out and respond to these voters’ second preferences.

Groups 1.2 and 2.2 represent voters in uncompetitive ridings: in Group 1.2’s case, they used to agree with the majority position; in Group 2.2’s case, they never agreed with the majority position. From a numerical perspective, their vote is immaterial to any outcome. From a dignity perspective, it is unlikely that any party will be particularly fussed about or responsive to their concerns. These voters can be taken for granted. Being taken for granted is antithetical to dignity.

On this understanding of Figueroa, only ridings that are sufficiently competitive will not infringe voters’ right to play a meaningful role in the electoral process. If competitiveness is the key, then an individual’s right is infringed where there is de facto (even if not deliberate) “packing”: that is, the concentration of voters of a single party in one district. Voters in the prairies are the most disadvantaged on this metric: the Conservatives win there by such a large margin34The 16 ridings with the greatest margin of victory all went Conservative. They are Foothills, Battle River–Crowfoot, Calgary Shepard, Red Deer–Mountain View, Banff–Airdrie, Red Deer–Lacombe, Lakeland, Bow River, Edmonton–Wetaskiwin, Grande Prairie–Mackenzie, Sturgeon River–Parkland, Calgary Midnapore, Yellowhead, Souris–Moose Mountain, Sherwood Park–Fort Saskatchewan, and Medicine Hat–Cardston–Warner. All had at least a 24500 vote margin (the average across all ridings is 10,200). that the contribution of an individual voter to the victory (or the hope of a non-Conservative voter of ever having a representative that prefers their views) is minuscule. Concomitantly, national political parties don’t need to devote much time to the concerns of that population. On the Boundaries Reference‘s understanding one might say that only the rights of the losers are infringed; on the Figueroa understanding, one should say that both voters for the elected candidate and those for the unelected candidates’ rights are infringed. Neither played a meaningful role because the result was practically pre-ordained.

The difficulty with the Boundaries Reference and Figueroa is that they each impose internal and indistinct limits on s 3. On the Boundaries Reference understanding of the right to vote, the aspects of how voting works have to be balanced against each other to see an infringement. Are Canadians “effective[ly] represent[ed]” when most voters did not vote for a victorious candidate? On the Figueroa standard, does residing in a riding that is safe as houses deprive a voter of a “meaningful role” in the legislative process? I’ve argued above that it’s less meaningful to be in a safe riding than a competitive one, but does it remain meaningful enough not to trigger s 3?

As discussed above, the fix that’s simplest, easiest, and most consistent with other jurisprudence is to divide the test into a scalar portion and a comparative portion. The scalar portion would ask “how effectively is the voter represented?” and “how meaningful a role can the voter play in the legislative process?”; the relative portion would ask “is the voter represented as effectively as any other” and “is the voter able to play as meaningful a role as any other”. If those refinements were accepted, then the weight of the analysis would shift out of s 3 proper and into s 1.

The more ambitious fix would be to return to the ten elements of the right to vote Justice McLachlin identified in Dixon. On that understanding of the right to vote, which specifically includes equality of voting power, an infringement by the present system could plainly be made out due to differing riding populations. A further infringement could be found in uncompetitive ridings, for the same reasons discussed above related to Figueroa.

I should note one other sub-SCC case, and the only one to consider proportional representation in the courts, Daoust35Daoust c Québec (Directeur general des élections), 2011 QCCA 1634. Daoust involved an application for a declaration that the Elections Act was invalid because it used the FPTP system. The application’s argument was primarily based on s 3 and s 15 of the Charter. The application judge dismissed the application, and the Court of Appeal of Quebec affirmed. The Court of Appeal held s 3 does not “guarantee … an undistorted electoral result”, nor (if it did?) does the current FPTP system “constantly” create distortions that are so significant as to infringe the right to vote36para 46. The court accepted the trial judge’s reasoning that there are “advantages and disadvantages” to every system, and that all of them can produce some kind of “deviation between the percentage of votes obtained and the number of members elected”.37paras 44, 51 Since every electoral system has shortcomings, the Court reasoned, the principle of effective representation cannot be violated “solely as a result of the electoral system”38para 57. Further, the right to equality was not infringed because discrimination was based on place of residence39para 50 and it was appropriate for the courts to “show appropriate deference” to an “extremely sensitive political subject”.40para 60

Daoust should not present a real impediment to a court finding an infringement in the future. First, Daoust‘s conclusions all rest self-consciously on the findings of fact of the trial judge regarding how different electoral systems all cause distortions — to a significant extent, Daoust has little precedential value because it concerned questions of fact, not law. Second, where Daoust does make conclusions of law, they are incorrect. The question of proportional representation’s advantages and disadvantages should not arise in a s 3 analysis of the current system. Proportional representation is an alternative to the current system, so it should properly be considered under s 1. It may well be that the infringements of the current system are justified because there is no better alternative: that does not mean there is no infringement. Moreover, on the current, Fraser-based understanding of equality rights, residence can be a proxy for a protected ground, and so an infringement could likely have occurred (whether it is justified under s 1 is another matter). And finally, deference to sensitive political subjects is inappropriate when sketching out whether an individual’s right has been infringed (it may be appropriate for justification, of course).

Deferring to political actors is singly inappropriate for s 3 rights, since whatever the electoral process is today, it will tend to elect candidates who do well under that electoral process. Those winning candidates will thus have every incentive to maintain a system that leads to them winning (unless, that is, the stars align for an interloper to gain enough power to change the system41As in fact happened in Manitoba first in the 1920s, when they adopted STV in Winnipeg and AV in the rest of the province, and again in the mid-1950s, when they reverted to FPTP. Politicians had been “[d]issatisfied with perpetual coalition governments” and the public disliked STV because “voters [were unable] to call any politician their own”: Charles Hoffman, “The Gerrymander and the Commission: Drawing Electoral Districts in the United States and Canada“, Man LJ 31(2), 331, 346-47.). Section 3 rights are one place where political actors are least worthy of deference, because political actors’ interests may be the most opposed to the citizenry’s — and moreover, some citizens benefit greatly from disenfranchising others.42Hence, of course, the exclusion of s 3 from the ambit of s 33

(Non-)Justification of FPTP

So long as an infringement is identified, the justification analysis under s 1 would proceed much the same way:

  1. There are pressing and substantive legislative goals (e.g., respecting communities or territories, limiting the number of MPs, or having a political culture that fosters compromise positions)
  2. There is a rational connection between achieving these goals and the extant unequal-riding FPTP system
  3. The system is either not minimally impairing of the right, or if it is the least impairing given the objectives, the objectives are disproportionate.

On the first step, the only supposed legislative goal that should be denied is that that it is important for the electoral process to produce a majority government. The broadest form of this argument was rightly rejected in Figueroa as antithetical to the principles underlying a free and democratic society43paras 79-80. Figueroa did, however, note that there may be collective benefits associated with majority governments that, with better evidence in a future case, could ground a pressing and substantial objective.44para 83

That better evidence seems unlikely to emerge. Many well-governed states do not have majority governments, including most of Europe, and many weaknesses associated with minority governments today (e.g., that they put political leaders in a permanent state of electioneering) should be seen as a consequence of parliamentarians’ hope for majority government. If minority governments are the norm and the future expectation, many of these problems will diminish.

As a general matter, the second step can be passed over fairly quickly. The only exception may be reliance on the ombudsman role of legislators (as discussed above), or defences of the rural ridings with fewer electors than urban ridings. Some urban ridings are surely more linguistically, culturally, and economically diverse than rural ridings — if the defence of existing districting is based on “how difficult it is for one member to represent everyone in the riding”, then courts should not be quick to accept that rural ridings are harder to represent than urban ones. Courts should be additionally sceptical, since the urban/rural split often correlates strongly with various groups under the protection of s 15, and so accepting over-large ridings for urban groups may disadvantage those groups.

The third is the core of the inquiry. Here, many alternative electoral systems can be less infringing than the current FPTP system and no worse than FPTP at various plausible government objectives.45Did I miss a government objective that you think is important? Let me know.

I’m going to start with AV. On the Boundaries Reference framing of “effective representation”, AV is clearly less infringing than FPTP. Under AV, voters’ whose first preference is not effectively represented may at least have a later preference represented. This may still be an infringement, but it is more effective representation than simply having their preferences ignored in the legislature. (Note that voters whose final preference is for the second-placed party are still infringed). The same goes for the Figueroa framing of the “right to play a meaningful role in the electoral process”. AV makes each voters’ role more meaningful, since their latter preferences are taken into account.

As far as I can understand it, there is no justification for FPTP that does not equally apply to AV, since AV is like FPTP except with a ranked ballot. The same level of local representation is possible, and this system does not vest power in party elites.

The existence of AV should suffice to show FPTP is not minimally impairing. But is AV minimally impairing? This is not a question the Charter Challenge court should answer, but it is a question of deep interest. Let’s consider the other alternatives, first on the Boundaries Reference interpretation of s 3:

  • MMP ensures more effective as representation relates to policy at a national level, while maintaining a local representative. MMP enhances respect for an individual’s first preferences.
  • STV is like AV, but with multiple members per riding. In an STV riding that elects three candidates, only voters for the fourth candidate have their preferences ignored. Fewer voters will have their preferences ignored under STV than under AV.
  • LPR is like STV, but every voter’s preferences are respected, since the last eliminated candidate’s votes are redistributed according to the remaining preferences for each voter.46Indeed, there’s a good argument that LPR is the least infringing possible system

And on Figueroa‘s:

  • MMP makes each voters’ role more meaningful, because their vote can contribute to overall national outcomes even if their local riding is uncompetitive (unlike in AV)
  • STV makes each voters’ role more meaningful, both on AV grounds, and because the competition between the nth representative in a n-member district and the n+1th member is likely to be tighter than between the first and second members
  • LPR makes each voters’ role more meaningful, since no one “loses” in that system; everyone who ranks enough candidates will have a representative in Parliament.

All three proportional systems are probably less infringing than AV. Can AV nonetheless be justified? Maybe. There are some significant arguments for AV over these alternatives:

  • AV has smaller ridings for the same number of MPs, which allows communities to be more directly represented; and
  • AV encourages voters & parties to make compromises because it encourages candidates to attract second-preferences of other voters; and
  • Versus MMP specifically, AV vests less power in party elites; and
  • Versus STV specifically, AV provides each voter with one MP who is “theirs”; and
  • Versus LPR specifically, AV preserves equality between members in the legislature.

The first argument is plausible as an argument about why a specific riding ought to be small, but not why all ridings should be that size. Specifically, it’s not clear why, say, Toronto (or rural Alberta) should be split into many ridings rather than fewer ridings with multiple MPs for each (as under STV or LPR). For certain populations, perhaps the right answer is to have just one representative, because it is more important to have that population to have a distinct representative than it is to represent the “losing” members of that population (and others near it). But saying that is sometimes the right answer should not lead courts to think it is always the right answer. Once AV is on the table, electoral commissions should be able to consider whether STV is appropriate (or less infringing) in individual areas.

The second argument is weaker than it looks. Compromise is immaterial under AV both in uncompetitive ridings and between the first and second placed parties. In comparison, STV and LPR provide stronger incentives for compromise in uncompetitive ridings, because under those systems parties (STV) and candidates (LPR) get an advantage by winning by more.

AV’s advantages against the individual systems are all plausible but not convincing. MMP does vest significant power in party elites; but it’s unclear that this would be more power than currently vested in parties when “safe seats” exist. STV does attenuate the connection between a voter who voted for a successful candidate and that candidate, but it also strengthens the connection for voters who otherwise would have voted for an unsuccessful candidate. And as I’ll discuss below, the internal functioning of the legislature is really a matter for the legislature to figure out, not the courts.

In sum, probably, AV isn’t going to be the minimally-infringing either, when alternatives like MMP, STV, and LPR exist. It’s not a question the Charter Challenge court should reach (AV being strictly less infringing than FPTP is enough there), but its legal inadequacies should motivate legislators to not settle on AV.

The districting system

The current districting system, where ridings differ significantly in population (for example, to take three federal ridings, the population of Labrador (NL) in 2011 was 26,728; of Kenora (ON) was 55,977; and of Brantford-Brant (ON) was 132,443; the average was 74,79047Wikipedia) can also be seen as infringing the right to vote.

The Boundaries Reference dealt with this issue directly in relation to Saskatchewan ridings. Even on the Boundaries Reference definitions, these numbers seem suspect. The Boundaries Reference suggested that variation with 25% of the average would be acceptable. These differences are well in excess of 25%.

But even if they weren’t, a key plank the Boundaries Reference relied upon is rotten. The Boundaries Reference in part said population differences were not so important because “voter parity is impossible”. This is incorrect. Voter parity is possible (indeed, guaranteed!) under LPR. And, even if it weren’t, saying “perfection” is impossible is no reason to say we cannot tell the difference between “better” and “worse”. The Boundaries Reference was concerned that no tabulation could ever predict the population of a riding perfectly on election day when drawing the electoral map. LPR provides a complete answer. Rather than predict population, it weights results by who shows up to vote on election day.

A second plank the Boundaries Reference relied on should also be brought into question. Are rural ridings truly harder to serve than urban ones? This notion seems both factually suspect and likely to disadvantage groups protected by s 15. And then there’s the ombudsman issue, that I discussed above.

If these critiques land — and they should — then there is no real justification for having ridings of unequal population size, other than “not wanting LPR generally”. Can LPR be so rejected?

It’s unclear to me. The most controversial aspect of LPR — at least as I see it — is how it will affect the conduct of members in the legislature. Legislative processes presumably have an implicit assumption of equality between members. If one member has a more heavily-weighted vote than another, does that require changes to the processes of the legislature? It surely would; votes by show of hands may be harder to do (although pressing a button would plainly fix that). And so too, the role of the weighted vote on committees would become more challenging too (I think it has no role, except perhaps in determining the composition of a committee). But are these concerns, whether they’re real or readily fixed, properly the concern of the Court? I don’t think they are: these are matters internal to the legislature, and the legislature can mitigate or alter them as they please. The Court should be insensitive to those concerns.

Of course, that’s not to say the Court should mandate LPR; rather, it should say the current system isn’t good enough, and Parliament can do better. Parliament may decide to make ridings that do not deviate by population, and not to rely on LPR at all. This would seem constitutional. The point of LPR here is as a stalking horse, an option that is less infringing than the present system, but at least equally beneficial on reasonable policy objectives.

TL;DR

The test for s 3 is a bit of a mess: the Boundaries Reference said it’s about “the right to effective representation”, but Figueroa, while affirming that, recast it as being about “the right to play a meaningful role in the electoral process”. Both definitions impose internal limits on s 3 that ought properly to have been a matter for justification under s 1. Rather than have a discrete choice between “infringement” and “no infringement”, the Court ought instead to have talked about “more infringement” and “less infringement”.

If those tests are treated in that way, then the current FPTP electoral system would appear to infringe s 3 voting rights. Losing voters aren’t effectively represented, and there’s no meaningful role for voters to play in uncompetitive ridings. These infringements aren’t justified, because there’s a less infringing alternative: AV. AV is like FPTP for just about every policy objective, but is less infringing. But AV probably isn’t enough either: for those policy objectives, there are still less-infringing alternatives: STV and LPR. Now, they don’t fulfill the policy objectives as perfectly as does AV, so the balancing is more discretionary: but at very least, there’s no good reason for STV to be unavailable as an option for electoral commissions. Some ridings might properly be single-member districts. Others might be better served by multi-member districts.

Regardless of how the s 3 right is defined, the current districting scheme is also suspect. LPR undermines one of the pillars the Boundaries Reference rested on: it is possible, using LPR, for voters to have absolute parity. But even without that, the difference in riding population and the assumptions backing it seem suspect as well.