Purpose of the Right to Vote Not Protected Says Court Ruling

Preface:

If the purpose of the right to vote in Canada is not protected by our constitution then how close are we to sham elections in our future?

On Aug 11 2025 a court ruling stated (par 29, 30): “Justice McLachlin described effective representation as a freestanding right, rather than simply the purpose of the right to vote…In doing so she merged conceptually distinct concepts: rights, which are constitutionally protected, and the purpose of particular constitutionally protected rights, which is not.”

I had to blink and read that again when I first saw it:

In a discussion of the Canadian Charter right to vote (Section 3), that ruling stated that the purpose of the right to vote is not constitutionally protected.

If the purpose of the right to vote in Canada is not protected by our constitution then how serious are the implications?

Let us remind ourselves that some countries do have sham elections, where people go through the motions of voting but their vote doesn’t mean anything.

So how much does our vote mean in Canada?

Some people would say that in Canada we have always had something that is too close to being like sham elections. These people point to what they call “Canada’s false majorities,” when a party can get a majority of seats with only a minority of the popular vote.

So, what exactly is a sham election?

Did this latest court ruling put us closer to it or farther from it in Canada?

Is the purpose of the right to vote related to having a fair vote?

If not, then what is the purpose of the right to vote?

For all of us who care about democracy we should all be paying attention because right now there is a case going through our courts that appears to be a struggle to define the purpose of the right to vote in Canada.

Synopsis:

On Aug 11 2025 the Ontario Court of Appeal's decision dismissed the appeal of Fair Voting BC v Canada (commonly known as the Charter Challenge for Fair Voting). Two judges (Huscroft J.A. and Trotter J.A.) wrote a majority opinion, and the third (Dawe J.A.) concurred in the decision to dismiss the appeal, but disagreed about some of the reasoning.

Because of this, the appellant, Fair Voting BC, needs to seek leave to appeal to the Supreme Court of Canada.

Nevertheless, here’s why I believe that this case stands a good chance of eventually being successful in important ways.

Justice Dawe’s critique of the majority interpretation of section 3 of the Charter (the right to vote) calls into question the rationale they use to dismiss the appeal. But there is evidence (below) that Justice Dawe does not replace that rationale with a sufficiently ironclad alternative rationale of his own. His rationale, too, is also subject to significant critique as you’ll see in the evidence below.

Therefore, in my view, the weakness of all three of the judges’ arguments shows that there are ample grounds for appeal to the Supreme Court of Canada.

First, by way of clarification:

This blog post mainly deals with, Section 3 of the Canadian Charter of Rights and Freedoms. It reads: “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.”
 
Second, let’s look at Justice Dawe’s ruling:

On the one hand, Justice Dawe emphasizes the below quote from McLachlin in the Saskatchewan Boundaries Reference.

Quote:
p. 185, that:
"[D]eviations from absolute voter parity may be justified on the grounds of practical impossibility or the provision of more effective representation. Beyond this, dilution of one citizen’s vote as compared with another’s should not be countenanced. [Emphasis added [by Justice Dawe].]"
End quote

On the other hand, Justice Dawe’s next paragraph (103) implies that those “practical impossibilities” extend to all electoral systems to the same degree. With the below quote he appears to erroneously lump together all electoral systems by using the word “all.”

“To the contrary, I am satisfied that legislatures have considerable leeway to choose between a wide range of different electoral models that all provide effective representation and “meaningful participation” in the electoral process to a sufficient extent to meet the demands of s. 3.”

The word “all” is categorical.

On the other hand, the McLachlin phrase, “more effective representation” implies that “effective representation” is relative; not categorical nor absolute.

The word, “more” implies that in the phrase “effective representation,” the adjective “effective” is relative. That is to say the representation in question can be “more” effective, or less effective. It’s a matter of degree. It is not a categorical absolute matter of an electoral system being demarcated as either “effective” or “not effective.”

Here is only some of the evidence that some electoral systems consistently provide representation that is “more” effective than other electoral systems:

The appellant, Fair Voting BC, previously presented the 2004 Law Commission as evidence. That Commission was referred to by Prof. Larry LeDuc (an expert for the Applicants on “Electoral Systems” and “Political Behaviour”) in the first Factum of the Applicants: Par 11 mentions the Commission’s report, “Voting Counts: Electoral Reform for Canada.”

The Commission states on pg 155: “…The new system would be fairer; it would be more representative of our society; it would be more inclusive (in terms of smaller parties); it would reduce the number of disregarded votes; and it would make party caucuses in the House of Commons more representative of the various regions in the country. It could also help to increase voter turnout. For these reasons, a mixed member proportional electoral system meets, and indeed surpasses, any realistic test for proving the desirability of reform.” 

(Note: the mixed member proportional system is only one of several proportional systems. I give this particular example simply to show that proportional systems in general achieve more effective representation for voters.)

In terms of “reducing the number of disregarded votes,” Fair Voting BC also provided to the courts a method to quantify the “relative parity of voting power” that is discussed in the [1991] Saskatchewan Electoral Boundaries Reference. In that case the Supreme Court of Canada concluded (at p 183) that the first condition of effective representation is “relative parity of voting power.” (See Footnote 1)

That Law Commission quote above aligns with a “purposive” interpretation of section 3 of the Charter that is referred to in these quotes from Jim Young of the Centre for Constitutional Studies, below:

Quote One:
“A Literal Reading or Broad Reading
…In interpreting the content of section 3, courts have had to determine whether it should be read literally or purposively. That is, should the court adhere to a plain reading of section 3 or should it read in implicit restrictions and democratic ideals?”

Quote Two:
“Justice Cory…said, “[In] the interpretation of all enfranchising statutes the provisions granting the right to vote should be given a broad and liberal interpretation. Every effort should be made to interpret the statute to enfranchise the voter.””

The “new system” recommended by the 2004 Law Commission is one of several proportional electoral systems that does exactly that: It “enfranchises” “more” voters by “reducing the number of disregarded votes.”

Question: In the Aug 11 2025 ruling does Justice Dawe read section 3 literally or purposively?

Answer: Actually he appears to be doing both --in what appears to be an incongruent fashion: In his criticism of the majority opinion (par 101, 102) he appears to be reading the content of sec. 3 purposively, but in par 103, when he provides his own rationale for dismissing the appeal, he appears to be reading it literally.

In light of all of the above, in my view, Justice Dawe’s literal reading of sec. 3 may have, whether intentionally or not, caused him to appear to be misinterpreting Fair Voting BC’s argument:

As I understand it, Fair Voting BC’s argument was not that all voters categorically need to elect a representative to meet the requirement of sec 3. Instead that argument was that we need to make every effort to “enfranchise” “more” voters by “reducing the number of disregarded votes.” This means maximizing the number of voters who elect an MP. This would be an effort towards "the democratic ideal" of "more" “relative parity of voting power.” (See link) This effort is made when reading the content of sec. 3 purposively as opposed to literally.

In conclusion:

How important is this case?

I see it as an integral part of the struggle to define the purpose of the right to vote in Canada.

I believe this has huge implications as to whether we get closer to, or farther from sham elections in our future.

Is that important enough for you to support?

If so, I recommend supporting the grassroots supported Charter Challenge for Fair Voting. This effort would not be possible without your support --either financially, or simply by telling your friends about it.

Footnotes:

Footnote 1:

That 2004 Law Commission report did meet the legal requirements of being an “Expert Opinion” because it was written by a panel of experts lead by Nathalie Des Rosiers. Also see this link.  

The fact that the 2004 Law Commission report did meet that legal requirement perhaps makes it more admissible as evidence than Antony Hodgson’s affidavit. The status of Hodgson’s affidavit was questioned in the first hearing. There was debate about whether Hodgson was either an expert witness, or a fact witness, or neither.

Nevertheless his affidavit has never been struck down as inadmissible. If his affidavit is written about by an expert then the status of that affidavit could, in the future, still be elevated to be considered as coming from an expert witness.

The Hodgson affidavit quantifies the degree of the effectiveness of representation on the basis of “relative parity of voting power” See link.

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. 

&&&&&&&&&&&&&&&&&&

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