How the Charter Challenge for Fair Voting case differs from the 2012 Gibb vs Quebec case

 

In the months leading up to the Judgement of April 26, 2012, a case called Gibb vs Quebec challenged our electoral system using the Charter of Rights section 3 and 15, the same sections we are using for the "Charter Challenge for Fair Voting" case. The links to that 2012 case are here and here

How is our court challenge different?

Nicolas Rouleau (an appellate and constitutional lawyer) answers that question in the following selected excerpts from a video entitled, “Charter Challenge for Fair Voting Webinar - December 16 2019” found at this link.

First: We are looking to provide more evidence: There's much more of a realisation today than there was even 10 or 15 years ago about the problems particularly with respect to minorities not getting a voice under First-Past-The-Post system than under other systems.

Second: The previous case was focused a lot more on parties rather than voters. The Supreme Court tells us you're expected to have some kind of representation that comes out of your vote. What we’re saying is -- at the individual level-- a voter who votes for a candidate who doesn't get elected, effectively doesn't really get much representation. And there's empirical evidence to that effect.

Third: on the section 15 argument [equal treatment]: The argument in the previous case was that [our electoral system] discriminated against people on the basis of territorial representation. [However] what we’re arguing is [that because of our electoral system] the discrimination is based on race, or ethnicity, on sex, on political opinion and belief. And these are all things that courts in the past have stated are protected by the Charter. 

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The above are only selected excerpts, but the below is the….
Full Youtube transcript (after I cleaned it up a bit):
For verification:
Press “Show More” to see a table of contents with links that you can jump to at certain points in the video. Our excerpt is from 34:15.
To see the Youtube transcript, press the three dots at the bottom right of the video and choose “show transcript.”

How is our court challenge different from previous cases like this?

Nicolas Rouleau answers with the following quotes:

 
Good question. Obviously there are lots of intricacies… lots of different legal arguments…but I think the differences can really be summed up in three ways:

…Just as a background: Often the first cases on an issue are not devoid of evidence but are sort of lacking in evidence because the courts haven't yet spoken about what evidence is relevant to these types of cases.  So the first lawyers who take on these cases are sort of in a bit of a vacuum as far as what evidence to present to the court to convince them that there's a breach.

Section 3, in particular, hasn't really been argued very often in court: There's probably (and don't quote me on this) but there are probably about 10 to 12 cases or so that have really been argued on this topic [ever]. So it's a pretty infrequently argued provision. Compare that to section 7 of the Charter (the right to life liberty and security of person) where there might be 12 cases a month in Canada on that issue.

So we're really not looking at a case where there were lots of precedents to look at.

So the first point where we're different [from previous cases] is we've been able to put forward a lot more evidence -- or we're looking to put forward lots more evidence.

 
Part of the reason for that is we've got more courts who have spoken about this, including the court on the Gibbs case, and it's given us paths or directions that we can take to provide more evidence so we think we're going to have much more evidence.

Also the field has evolved since then, and I think there's much more of a realisation today than there was even 10 or 15 years ago about the problems particularly with respect to minorities not getting a voice under First-Past-The-Post system than under other systems as we've seen more countries in the world adopt these various modes of electoral representation rather than First-Past-The-Post.

So the first issue would be much more evidence in our case.

The second issue would be that the previous case was focused a lot more on parties rather than voters.

 
[The previous case used] parties as proxies for voters but [it really argued that] the unfairness was really with respect to parties: [For example, a given] party got X percentage of the vote but didn't get X percent of candidates.  

[However, in our case] we’re focused a lot more on the individual -- ie. the individual voter-- in terms of their experience going through this. So as a voter you expect you vote for someone, and the Supreme Court tells us you're expected to have some kind of representation that comes out of your vote. What we’re saying is -- at the individual level-- a voter who votes for a candidate who doesn't get elected, effectively doesn't really get much representation. And there's empirical evidence to that effect.

So, again, the focus is really a lot more on voters than on parties.

The third point is on the section 15 argument [equal treatment]:

 
It's really a completely different argument [than the previous case]. The argument in the previous case was that [our electoral system] discriminated against people on the basis of territorial representation:  [It argued that] the voters in Greater Montreal were treated differently than other voters. Part of the issue there was that the Charter doesn’t protect against discrimination on the grounds of territory of residence.

[However] what we’re arguing is [that because of our electoral system] the discrimination is based on race, or ethnicity, on sex, on political opinion and belief. And these are all things that courts in the past have stated are protected by the Charter. So it's a bit of an easier argument in that sense.

End quote from Nicolas Rouleau