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.

Exploring Strengths in The Charter Challenge for Fair Voting's Affidavit of Antony Hodgson

A Compilation of Key Excerpts (with Editor's Notes by Boyd Reimer)

(This post is duplicated in a Google doc at this link.)

Why a Charter Challenge:

Quote from the Charter Challenge for Fair Voting website: 

“The Charter guarantees our right to vote and our right to equal treatment. It's up to the Supreme Court to decide when this principle has been violated…. 

 “Each citizen is entitled to be represented in government.” – Justice Beverly McLachlin  

That’s each of us, not just some of us. That principle has been upheld in several cases throughout Canadian elections. 

The court has also said that voters should be treated equally, but when only half of us have an MP we support, the system is discriminatory and excludes those voices. [Countries with electoral systems based on proportional representation do much better in terms of voter equality (see evidence below).]

Constitutional lawyers have advised us that we have a worthwhile case to make against our current voting system on these grounds.

Why not change the system through political channels? 

Governments of various stripes have supported electoral reform while in opposition, and on the campaign trail only to back away from the promise of reform once elected.

The present government and parliament have decided not to proceed with electoral reform. It could be years, or decades, and several elections, before electoral reform becomes a possibility again. Democratic rights are human rights. It's the Supreme Court's job to ensure that those rights are protected when parliament neglects to protect them.”

End Quote from the Charter Challenge for Fair Voting website:

Editor's Note: How to make a strong case in a Charter Challenge

The Charter guarantees rights to individual citizens; not political parties. Therefore a successful Charter Challenge for Fair Voting must show how our current electoral system violates the Charter rights of individual citizens -- not political parties. (1)

“But,” you may be asking, “has the Supreme Court already made a previous ruling about fair voting and fair representation of individuals? In other words, do we have a pre-existing precedent and thereby have a much stronger foundation upon which to build our case?”

The answer is “yes!”

Here’s a quote from the Supreme Court of Canada (1991 Saskatchewan Election Boundaries Reference, p 183). (This ruling is about the sizes of riding populations):

“[The result of] a system which dilutes one citizen’s vote unduly as compared with another citizen’s … will be uneven and unfair representation.”

The above 1991 quote, among other things, provided Antony Hodgson with a strong foundation to submit an affidavit as evidence in the case.

That key affidavit is explored below.

Editor's Note: A remarkable finding of the Affidavit of Antony Hodgson

Before we explore that affidavit in detail, here’s one of its most remarkable findings:

Unfortunately, in recent decades our electoral system is still allowing for differences in voter power that are five times greater than those 1991 allowable differences in voter power due to the sizes of riding populations (see evidence below).

This means that, in terms of voter equality, one part of our democratic process (our electoral system) is five times worse than another part (differences allowed in sizes of riding populations).

If voter equality is like a chain then it’s only as strong as its weakest link. The weaker link in this case is our electoral system--as the below measurements and evidence show.

A weakness in voter equality is detrimental because the validity of our democracy depends on the strength of its voter equality.

If the validity of our democracy is like a chain then it’s only as strong as its weakest link. In Canada’s case, a weak link is a relatively low level of voter equality in our electoral system--as the below measurements and evidence show.

Photo credit: capacityllc.com

Digesting Excerpts from the Affidavit of Antony Hodgson to the Charter Challenge for Fair Voting case

The Affidavit PDF is available for download from this link (See “Fair Voting BC”): 

Quotes, paraphrases, and sources from that affidavit are noted in the below  “Excerpt Compilation Article” in parentheses (), and/or footnoted. Underlined emphasis is my own (ie Boyd Reimer).

Introductory Synopsis:

 In the [1991] Saskatchewan Electoral Boundaries Reference [on the sizes of riding populations], the Supreme Court of Canada concluded (at p 183) that the first condition of effective representation is “relative parity of voting power.” The court argued that dilution of voting power is problematic because it reduces the legislative power of the citizen and access to and assistance from his or her representative. In their words:

 “A system which dilutes one citizen’s vote unduly as compared with another citizen’s vote runs the risk of providing inadequate representation to the citizen whose vote is diluted. The legislative power of the citizen whose vote is diluted will be reduced, as may be access to and assistance from his or her representative. The result will be uneven and unfair representation.” (Pg 29, par 63)

This previous Supreme Court ruling on citizens’ “legislative power” as it pertains to electoral boundaries can be used as a point of comparison to show that Canada’s electoral system is not as fair in the distribution of legislative power to individual citizens as when we compare it with the electoral systems of countries with proportional representation.

When we use something called the “Legislative Power Share score” to precisely and mathematically measure and compare the different degrees of “legislative power” that different citizens have within our electoral system... we find that “the [difference and] disparity in Legislative Power Share scores in recent decades has typically been over five times higher than the disparity allowed by the courts in the sizes of riding populations.” (Pg 56, par 101)

What exactly is a “Legislative Power Share score” and how does it precisely and mathematically measure and compare the different degrees of “legislative power” that different citizens have within our electoral system?

Let’s answer that by taking a deeper dive into the “Parity in Legislative Power” project carried out by Antony Hodgson when he prepared his Affidavit for the Charter Challenge for Fair Voting.

First, notice that “parity of voting power” is a phrase taken directly from the above-mentioned precedent ruling of the Supreme Court.

The the Affidavit of Antony Hodgson defines and summarizes three “indices,” which are “measurements,” or “metrics,” in the following way (pg 33, par 71):

 1. The Representation Metric (RM) - the percentage of voters who are represented by an MP for whom they voted;

 2. The Legislative Power Share (LPS) Score - the share of legislative voting power held by individual voters relative to their ‘fair share’ (parity)

 3. The Legislative Power Disparity Index (LPDI) - The distribution of legislative power amongst voters. (It summarizes the integrated impact and effect of disparities in legislative power that are felt and measured at the individual voter level by the Legislative Power Share score.)

[End of Synopsis]

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A Deeper Dive…

… into the Affidavit of Antony Hodgson's measurement of the Legislative Power of Individuals:

(Below excerpts compiled by Boyd Reimer)(3)

1. The Representation Metric (or “measurement”) identifies the percentage of voters who are represented by an MP for whom they voted. If the votes of all voters counted towards electing an MP, the Representation Metric would be 100%. (pg 35, par 73) The below comparison chart (Figure 11) is taken from pg. 40:

Figure 11. Representation Metrics for Canada (2019 federal election) and two recent elections in each of three selected countries using proportional voting (to demonstrate consistency of findings). The solid colours represent those voters who are represented by a representative for whom they have explicitly voted (‘direct’ representation), while the shaded colours represent those voters who are represented by a representative who won a seat by virtue of votes cast for the representative’s party (‘indirect’ representation). Norway uses a List PR system with 19 compensatory seats out of 169 seats total, Ireland uses a Single Transferable Voting System, and New Zealand uses a Mixed Member Proportional system. The two systems that use multi-member regions (Norway and Ireland) have similarly high levels of direct representation, while New Zealand has a level of direct representation similar to that of Canada due to its use of single member districts. The two systems that have a national compensatory element (Norway and New Zealand) have similarly high levels of total representation.

2. Legislative Power Share (LPS) Score (pg 40): measures the share of legislative voting power that individual voters hold compared to other voters in Canada (their ‘fair share’ or 'parity'). (pg 41, par 78)

Did You Vote For Your MP Or Not?:

Pg 41, par 79: Each of Canada’s 338 MPs holds an equal share of legislative power in the Canadian Parliament. If a voter did not vote for their elected MP, this voter had no influence on the ability of the MP to exercise legislative power (and their MP did not rely on their vote). We therefore assign this voter a Legislative Power Share score of zero.

On the other hand, if a voter voted for their elected MP, the voter’s share of the MP’s legislative power depends on how many other voters in the riding also voted for the MP.

The Scores Of Those Who Did Vote For Their MP Are Calculated As Follows:

Pg 42, par 81: To determine the “legislative power share” of a voter who voted for their MP, we divide the average number of votes cast per seat in that voter’s riding by the number of votes received by the elected MP. 

We then apply a weighting factor to adjust the share of each voter’s legislative power depending on whether the total number of voters in the riding was greater or smaller than in other ridings (since voters in ridings with fewer voters have more impact on the election of an MP than voters in ridings with more voters).

An Amplified Voice Or A Diminished Voice Are The Effects Of Deviating From A Representation Of “1”:

Ideally, if each voter had equal influence on the makeup of the legislature, then every voter would have a Legislative Power Share score of 1. If a voter’s Legislative Power Share score is greater than 1, that voter effectively has their voice in Parliament amplified relative to the average voter. Conversely, if a voter has a Legislative Power Share score of less than 1, then that voter has a diminished or diluted voice in Parliament. The relative representation of different voters becomes more uneven and unfair the more the distribution of LPS scores deviates from a uniform value of 1.

Pg 44: Figure 12: “Legislative Power Share” (LPS) Score Range in the 2019 Canadian federal election

 

Figure 12. Histogram of Legislative Power Share scores in the 2019 Canadian federal election. Scores closer to the parity value of 1 are shown in green, while scores further away are shown in shades of yellow and red. The sum of all bars in the histogram is 100%.

Pg 48, Figure 14: Percentage of Voters with Various LPS Scores – comparing Canada to Countries with proportional representation

 

Figure 14. Distributions in Legislative Power Share scores in Canada’s 2019 federal election and in recent elections in three selected countries using proportional voting systems.

The next chart, Figure 15 is basically an excerpt from the above chart. (pg 50)

Figure 15. Percentage of voters with a Legislative Power Share score within +/-10% (dark green), +/- 25% (dark green + light green) and +/-50% (dark green + light green + yellow) of parity (colours correspond to previous chart). All comparator countries have at least two-thirds of voters with LPS scores within +/-50% of 1 (ranging from 67-92%), while Canada has fewer than 10% of voters within that margin.

3. Legislative Power Disparity Index: The distribution of legislative power amongst voters. (pg 50)

To understand that concept simply look at the below Figure 16 (pg 51), keeping in mind that the bars at either end (sides) of the plot show the shares we would expect if legislative power were distributed equitably. In other words, the black line across is the benchmark of uniform equality:

Figure 16. Distribution of Legislative Power Shares across different segments of the voters for all federal elections in Canada since Confederation. The share of legislative power held by the bottom 50% of voters is shown in grey, the next 40% in orange, and the top 10% in red. The bars at either end (sides) of the plot show the shares we would expect if legislative power were distributed equitably.

Pg 51, par 92: In a voting system with perfect legislative power parity, the legislative power shares would be distributed evenly across all voters (as in the separated bars at either side of the figure above). In Canadian elections, however, the 10% of voters with the greatest legislative power scores have consistently held close to 25% of the legislative voting power. The next 40% of voters have consistently held most of the remaining 75% of legislative voting power while the bottom 50% of voters have often held no legislative voting power at all in the past 60 years.

The disparity in legislative power between voters in Canadian elections illustrated above can be more precisely visualized and quantified using tools drawn from the political science and economics literature. In this literature, the Gini coefficient is a commonly-used index to measure disparity in the distribution of a property (e.g., income or wealth); here we use it to measure disparity in the distribution of Legislative Power Share scores. It is calculated by plotting the cumulative percentage of the property against the percentage of the population that holds that percentage of property, ordered from those holding the least of the property to the most (this is known as a Lorenz curve).

[(Ed. note: But since the charts --both above and below-- are visually self explanatory it’s not absolutely necessary to fully comprehend that they show the “Gini coefficient,” or “Lorenz curve.”)]

Pg 52, par 94: The chart below (Figure 17) illustrates Lorenz curves for four elections – one from Canada and one for each of the three example countries using proportional voting systems. In each plot, the blue line indicates an equitable distribution of legislative power - i.e., each voter holding equal shares. The red line is the Lorenz curve, which shows the cumulative shares of legislative power held by the percentage of voters on the horizontal axis.

In an election with an equitable distribution of legislative power (i.e., where each voter equally contributed to the election of an MP), the two lines would coincide. In contrast, increasing deviations between the red and blue lines indicate increasing inequities in the distribution of legislative power in the election.

Figure 17 (Pg 53) (LPS = Legislative Power Share):

Pg 54, par 97: The following figure (Figure 18) shows the Legislative Power Disparity Index for all Canadian federal elections since Confederation.

Figure 18. The Legislative Power Disparity Index for all Canadian federal elections since Confederation. The LPDI has averaged 57.4% in the period from 1970 until the present. 

Pg 55, par 100: As a point of comparison, the Gini score expressing the disparity in riding sizes (shown in Figure 20) averaged approximately 20% from Confederation until 1965, but has averaged only 11.1% since 1968, when the first federal Election Boundaries Commissions were established, and only 9.3% since 1993, which was the first election following the Supreme Court ruling in the Saskatchewan Electoral Boundaries Reference which limited permitted deviations to +/-25% in most circumstances.

Figure 20. Riding Size Disparity Index (Gini scores) for all Canadian federal elections since 1867. Since the Electoral Boundaries Commissions were established prior to the 1968 election, the index has decreased from roughly 20% in the first century after Confederation to under 10% in recent decades.

Pg 56, par 101: The disparity in Legislative Power Share scores in recent decades has typically been over five times higher than the disparity allowed by the courts in the sizes of riding populations.

[To illustrate that five to one difference the below chart shows the Riding Sized Disparity Index (Fig 20) superimposed on the Legislative Power Disparity Index (Fig 18):]

Are countries with proportional representation doing better than Canada? The answer is below:

Figure 21 (pg 57)

 

Figure 21. Legislative Power Disparity Indices calculated for Canada in 2019, along with those for two recent elections held in the three comparator countries. All comparator countries show LPDI values less than half that of Canada.

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Many thanks to Antony Hodgson and Fair Voting BC for the above excerpts from the Affidavit for the Charter Challenge for Fair Voting:  The affidavit PDF is available for download from this link (See “Fair Voting BC”): 

Footnotes:

Footnote 1: You may recall 2015 when Trudeau promised to change our electoral system. As a consequence, a Canadian House of Commons Special Committee on Electoral Reform was formed to investigate reforms to the Canadian electoral system. Their final report recommended, among other things, that the government would design the system with the goal of any proposed system scoring a 5 or less on the Gallagher index. The Antony Hodgson / Fair Voting BC Affidavit refers to that finding, but instead of using a measurement for parties, it develops a measurement for individuals. This is in keeping with the fact that the Charter of Rights is about individual rights instead of rights for political parties.

Footnote 2: The affidavit provides hyper links to supporting evidence in Byron Weber Becker’s online “Election modelling.” See links:

Election modelling 

Legislative Power Analyses

Parity in Legislative Power

Quote from Byron Weber Becker’s Election Modelling website:

“[As a counterpart to the Gallagher Index] this paper proposes a complementary voter-centric measure, the Legislative Power Disparity Index, which measures the fairness of an election as a whole from the voter’s perspective. It is built on a Legislative Power Score (LPScore), which is assigned to each voter in the election. In a perfect world each voter would have an LPScore of 1 and the election as a whole would have an Legislative Power Disparity Index (LPDI) of 0.”

Footnote 3:  Compiling Editor of the above excerpts: Boyd Reimer (Feb 19, 2023)

(This post is duplicated in a Google doc at this link.)