Nov 5 Update from the Charter Challenge for Fair Voting

Nov 5 Update email from the Charter Challenge for Fair Voting 

Quote:

"Today was our big day - we presented our appeal in the Court of Appeal for Ontario in front of a panel of three judges - Justices Grant Huscroft, Jonathan Dawe, and Gary Trotter. If you'd like see a play-by-play commentary of what went down, check out our tweets here.

Our "Hot Take" on What Happened

Our lawyer, Nicolas Rouleau, opened the day by laying out our argument for appeal. His main point was that the modern conception of democracy requires that voters have an elected representative aligned with their political views advocating for those views in Parliament, and our current system denies that to half the voters.

He also argued that many voters' right to meaningful participation is infringed by our current voting system because it discourages them from voting at all, or forces them to cast a strategic vote rather than one that honestly reflects their true preference.

He questioned whether the trial judge inappropriately considered possible "balancing" concerns (various supposed "strengths" of FPTP) before deciding whether FPTP infringes on our section 3 right to vote - these considerations are supposed to come in later, in what's known as a "section 1" analysis.

Nicolas then went on to outline reasons why the judge's reasoning about the impact on women's representation was incorrect - mainly that the judge found that the voting system is not the primary factor behind their under-representation in Canada, but Nicolas pointed out that the standard is simply that it has to be a contributing factor, and the evidence strongly supports that.

Nicolas advanced many other arguments, and one of the interveners supported our claim that political opinion should be considered a basis for protection from discrimination under section 15, in accordance with international law. Other interveners also spoke in support of many of Nicolas' arguments.

The government of course argued against all these points, and another intervener argued that FPTP is "constitutionalized" and therefore beyond the reach of the courts. Naturally we disagree.

The judge who chaired today (Huscroft) asked the majority of the questions (many about how the concerns we raised were linked to constitutional law rather than being questions of public policy), and Justice Dawe also asked a number of them (he seemed to be very interested in the question of whether any system could conceivably satisfy our definition of effective representation - ie, requiring electing an MP aligned with our political views).

Nicolas made a final rebuttal to the government's presentation, and then the appeal wrapped. Now we wait for the court to issue its ruling (likely about 2-4 months from now).

Update on "Leave to Appeal" Fund:

While we very much hope that the court agrees with us and declares our current voting system unconstitutional, we're also actively preparing for what comes afterwards. Regardless of the decision, we expect that whoever loses the appeal will seek leave to appeal to the Supreme Court. We're currently fundraising to be ready to do that as soon as the decision comes down early next year.

So far, our supporters and partners have donated almost $17k of the $30k we'll need for that, so we're well on our way. Ideally, we'd like to have most of the balance in hand by shortly after the appeal so that there are no delays once the appeal decision comes down.

To show your support and contribute to this next stage, simply click the button below:

Yes, I'll Contribute Towards Applying for Leave to Appeal

Thanks again for your ongoing support - as always, we absolutely couldn't do this without you!

Grace Chitate, Springtide

Antony Hodgson, Fair Voting BC

PS: A reminder that any donations over $25 in a year will be eligible for a charitable donation receipt. These receipts produce tax rebates ranging (depending on where you live) from 19-75% of your donation for the first $200 and 40-58% on the portion of total charitable donations above $200."

End Quote

 

Canada’s election laws have silenced Green [and "labour"] voters for far too long – says constitutional expert in Op Ed supportive of the Charter Challenge for Fair Voting

David Beatty, a noted constitutional expert, recently wrote an Op Ed in the Globe and Mail entitled "Canada's election laws have silenced Green voters for far too long," which is supportive of the Charter Challenge for Fair Voting. 

But it's not only Green voters who should take note of this challenge: Beatty has demonstrated his constitutional expertise with publications such as Putting the Charter to Work: Designing a Constitutional Labour Code which may be of interest not only to Green Voters interested in labour rights but also to NDP voters interested in labour rights: 

Both these voter groups should take an interest in how the Charter Challenge for Fair Voting can help in their particular struggles for their basic civil rights -- rights that have been denied to them by the unfair electoral systems in Canada and its provinces which, on average, tend to favour the top two dominant parties. See evidence in Footnote below.

Question: Would a court decision in the Charter Challenge for Fair Voting apply to provincial electoral systems as well, or just the federal system?

Answer (from this link on the Charter Challenge website): "Our case asks the court to rule specifically on the federal voting system. A decision in our favour would only have immediate implications and effects on the federal government.

However, a Supreme Court decision in favour of our case would set a strong precedent for all future cases of it’s kind. In many cases involving charter law where a strong precedent has been set by the Surpeme Court, it increases the chances that a case will be resolved at a lower court, and governments often take proactive steps to avoid legal battles they cannot win."

Footnote:

Above graph sourced from "Is Canada Fair?" at this link. (Orange is NDP; green is Greens; red is Liberal; blue is Conservative.)

Also, it should be noted that the above graph shows national results only. But when you look at regions, election results from all parties are distorted with First Past the Post, as we see in Wilf Day's quote below (See his great blog at this link):

Quote:

"Myth: PR helps only the NDP and Greens.
Fact: In the 2015 election, in the GTA 396,000 NDP votes were ineffective, disregarded, wasted, and thrown in the garbage can by our skewed winner-take-all system.
But 944,000 Conservative votes in the GTA were ineffective.
And so were 993,000 Liberal votes in Western Canada.
While 235,000 Atlantic NDP voters elected no one, so did 249,000 Atlantic Conservative voters and 384,000 Alberta Liberals.
Across Canada, 8,921,682 votes were ineffective. That’s 50.7% of all votes cast.
But the majority of those disregarded votes were for Liberals and Conservatives: 30% for Conservatives and 26% for Liberals, while 29% were for NDP candidates, 7% for the Bloc Quebecois, and 6% for the Greens."

(End Quote)

My response to Wilfred Day: While all of this is true, the national averages, as opposed to regional data, shown in the graph above, speaks for itself. In the national average, it is generally* the smaller parties who lose the most in ANY country that uses the "First Past The Post" voting system. In Canada's case, it's the NDP and Greens who generally* lose most.

* Parties that have voters dispersed across many ridings/regions are worse off than parties (such as the Bloc) which are not dispersed. 

Part 2 of: A Shared Commitment to Fairness: Fair Vote Canada and the Charter Challenge for Fair Voting

(This is a continuation of Part 1 at this link.)

Both Fair Vote Canada and the Charter Challenge for Fair Voting have long pointed to the fact that, quote, “in Canada’s current electoral system, the majority of voters cast ballots for a candidate who does not get elected.”

In the next few months that statement/fact will become even more prominent in the work of both of those organizations.

That statement is found in MP Lisa Marie Barron’s Private Member’s motion, M-86, to establish a Citizens' Assembly on Electoral Reform. That motion is actively supported by Fair Vote Canada. See link.  It will be debated in the fall of 2023 and voted on either in the fall of 2023 or early 2024.

But even before that happens, the Charter Challenge for Fair Voting has a court date of Sep 26 in Toronto, and its case evidence also includes a variation of that same statement of fact.

[ UPDATE ]:

The case was first heard in the Ontario Superior Court from Sep 26-28, 2023. Justice Ed Morgan handed down his ruling on Nov 30, 2023.

Unfortunately, Justice Morgan dismissed our Application, so we filed a Notice of Appeal on Dec 29, 2023. That Notice of Appeal can be downloaded from the Charter Challenge "Appeal" web page which is at this link.

Why does M-86 allow the option of not reforming something that is so clearly unfair?

The first part of the M-86 motion describes an unfair situation in which “the majority of voters cast ballots for a candidate who does not get elected.”

Given the fact that other countries can do so much better, it seems obvious that this situation is in need of reform. Yet the last part of the motion then implies that this situation may, or may not be, in need of reform: It reads:
“(b) in the opinion of the House, the government should create a Canadian citizens’ assembly on electoral reform, which would,…
…(iii) determine if electoral reform is recommended for Canada, and, if so, recommend specific measures that would foster a healthier democracy."
End Quote

Notice the word “if.”

It’s reasonable to ask the Citizens’ Assembly to “recommend specific measures that would foster a healthier democracy,” but it seems odd to give the citizens’ assembly the option of not recommending to reform a situation in which “the majority of voters cast ballots for a candidate who does not get elected.”

Was this oddity in M-86 part of a strategy to make it less binding, less threatening and therefore more likely to pass?

In any case, because of this oddity in M-86, there is clearly a need for an additional impetus for change that is not found within M-86.

Additional Impetus for change

Additional impetus for change would come if the plans of the Charter Challenge for Fair Voting are successful in the following two goals: 1. the Supreme Court rules that our current voting system contravenes the Charter, and 2. the Supreme Court orders the government to adopt a voting system that complies with the Charter. 

If that happens then the Citizens Assembly would be obligated to “determine” that “electoral reform” is indeed “recommended for Canada.”  In that scenario, that obligation would likely be manifested through the power of the House of Commons instead of the courts. In other words, the act of setting up a Citizens Assembly in the first place would likely be a political decision by the House of Commons, not a legal decision that bypasses the House.

Could the Charter Challenge for Fair Voting work in Tandem with a Citizens’ Assembly on Electoral Reform?

Réal Lavergne, former President of Fair Vote Canada, presented that possibility on Feb 16, 2023 with this quote:

“And we’re hoping that the Supreme Court will pronounce itself on that and hopefully that the Supreme Court will say you have to find a way to hand this over to citizens and the Citizens’ Assembly would be one way to do it.” (1)

In that type of tandem effort it makes a lot of sense for Fair Vote Canada to push for a Citizens’ Assembly on Electoral Reform exactly at the same time as the Charter Challenge for Fair Voting pushes for a victory in the courts.

Footnotes:

Footnote 1:
Réal Lavergne’s quote is found here: “Advancing Proportional Representation in Canada” Stephan Kyburz interviews Réal Lavergne in this Feb 16, 2023 episode of “Rules of The Game: Discussing Democratic Institutions” Blog/Podcast  See this link 

Lavergne mentions that interview on his Facebook page Feb 16, 2023 (See this link): Here I paraphrase his comments further in that Facebook thread:

It would be valuable if we could get the courts to say that it was largely politics and partisan interests that have prevented the adoption of electoral reform. If the courts say that then that would be a reason for them NOT to give the decision on electoral reform to the government in power.

If the courts do rule that the existing electoral system needs to be overhauled, then to develop a new system… “some sort of independent process is required and there needs to be a way to ensure that independence, based on multi-party or all-party support.” “So, [it should be] either a Citizens Assembly or some other form of citizen-based process that is unassailable.”

Countries With Proportional Electoral Systems Have Lower Levels Of Income Inequality

Evidence that countries with proportional electoral systems have lower levels of income inequality has been compiled by Fair Vote Canada on their Evidence webpage at this link.  The below is an excerpt/quote from that webpage:

Income Inequality

Lijphart (2012: 282) found that countries with proportional systems had considerably lower levels of income inequality.

Likewise, Birchfield and Crepaz (1998:192) found that “consensual political institutions [which use PR] tend to reduce income inequalities whereas majoritarian institutions have the opposite effect.” The results of the regression work they present were highly significant, with PR accounting for 51% of the variance in income inequality across countries. Birchfield and Crepaz explain this result in terms of the higher degree of political power of people in PR systems. In their words (1998:191):

“The more widespread the access to political institutions, and the more representative the political system, the more citizens will take part in the political process to change it in their favour which will manifest itself, among other things, in lower income inequality. Such consensual political institutions make the government more responsive to the demands of a wider range of citizens.”

Vincenzo Verardi, in a study of 28 democracies (2005), also found that when proportionality increases, inequality decreases. Iversen and Soskice (2006) found that PR is associated with greater efforts to promote income redistribution.

Bernauer, Giger and Rosset (2015) looking at 24 Parliamentary democracies, found that the political preferences of low income citizens are better represented in a more proportional system, and the political preferences of the rich are better represented in a winner-take-all system.

Footnotes:

Lijphart, Arend (2012). Patterns of Democracy. Government Forms and Performance in 36 Countries. New Haven, CT: Yale Press.

Birchfield, Vicki and Crepaz, Markus (1998). “The Impact of Constitutional Structures and Collective and Competitive Veto Points on Income Inequality in Industrialized Democracies.” European Journal of Political Research 34: 175-200.

Verardi, Vincenzo (January 2005). ”Electoral Systems and Income Inequality.” Economics Letters, 86-1: 7-12.

Iversen, T., & Soskice, D. (2006). “Electoral Systems and the Politics of Coalitions: Why Some Democracies Redistribute More Than Others". American Political Science Review 100-2: 165–81.

Bernauer, Giger and Rosset (2015). “Mind the gap: Do proportional electoral systems foster a more equal representation of men and women, poor and rich?” International Political Science Review. 36-1: 78-98.

 

Trudeau, and the Liberal Party on Electoral Reform, May 10 2023

 

On May 10, 2023 in Parliament:
See this video at 15:21:30

Mike Morrice: “Mr. Speaker Canadians overwhelming support creating a Citizens Assembly on Electoral Reform. This past weekend, Liberal Party members strongly voted in support of it, too. Yet the Prime Minister won’t make electoral reform a priority. So, if not Canadians, and if not his own party, who else does the Prime Minister need to hear from before he’s ready to act?”

Justin Trudeau: “Mr. Speaker, as Members of this House know, I’m committed and continue to be hopeful about replacing the First Past the Post system with a preferential ballot. I moved forward in 2015 to live up to that promise and to find consensus in this House of Commons because when you change something as fundamental as the way we elect this House it has to be done with consensus. Unfortunately there was no consensus on moving forward with a ranked ballot therefore we chose not to do it. I continue to be open. If anyone wants to move forward with a preferential ballot I’m happy to talk with them but we will not impose a change on Canadians.”

Fact check (See source below): 

First, Trudeau speaks of "replacing the First Past the Post system with a preferential ballot." In the next sentence he refers to "[moving] forward in 2015 to live up to that promise."

What exactly was "that" 2015 promise? Was it, as he said, to "[replace] the First Past the Post system with a preferential ballot?"

No.

Instead, the Liberal 2015 platform promised an all-party committee to (quote) "review a wide variety of reforms, such as ranked ballots, proportional representation, mandatory voting . . ."
Notice the words “ranked ballots” are separated by a comma before the words “proportional representation.”
See pg 27 in this document (download PDF): Click Here or copy and paste the below link into your browser:
https://liberal.ca/wp-content/uploads/sites/292/2020/09/New-plan-for-a-strong-middle-class.pdf?
 

Ask Yourself Seven Questions about Trudeau’s Statement that Proportional Representation Causes Division

 On June 6, 2022, Justin Trudeau said, “Anywhere we see proportional representation it is a recipe for divisive and regional outcomes that don't make for stable approaches.” (See 22:47 in this video)

Ask yourself seven questions about that statement (Notice the ones further down the list that get less attention):

1.    Is the alternative that Trudeau suggests better or worse than our current electoral system?
2.    Does our current electoral system produce outcomes which then lead to more division and instability than systems based on proportional representation?
3.    Does DISproportional representation meet the definition of representative democracy better than proportional representation?
4.    Is the task of “developing unity” within the scope of the function of elections?
5.     Will the task of “developing unity” be better served after elections which produce DISproportional representation rather than proportional representation?
6.    Is it necessary to establish Truth before Reconciliation?
7.    Is that “Truth” (ie. “the will of the people”) better reflected with better voter equality (ie. the voter equality that accompanies proportional representation)?

First: Is the alternative he suggests better or worse than our current electoral system?

Trudeau suggests an alternative electoral system which uses ranked ballots in single member ridings. But it is just another winner-take-all system. All winner-take-all systems share the same flaws as we see below. Ranked ballots in single member ridings produce results which are less representative of the “will of the people” than our current system, as evidenced by the Gallagher Index.

Second: Is our current system more “divisive” and “unstable” than proportional representation?

There is much evidence that our current system produces outcomes which then lead to more division and instability than electoral systems based on proportional representation: See this Fair Vote Canada link.

In terms of “stability,” a shortcoming of all winner-take-all electoral systems (relative to proportional systems) is that relatively small shifts in voting preferences are sufficient to generate large shifts in power, which more often results in policy lurches when a government changes.

In terms of “regional outcomes,” a shortcoming of winner-take-all systems (relative to proportional systems) is that they often create the false impression that an entire region voted unanimously for only the party of all the winners of winner-take-all ridings of that particular region.

For example in the 2019 federal election, despite political diversity in Alberta and Saskatchewan, voters of parties other than the Conservatives received almost no representation. See link.

In addition to robbing some voters of their rightful representation and being only partially representative of the will of the people within that region, this creates an illusory demarcation of that region from a national perspective.

Third: Does DISproportional representation meet the definition of representative democracy better than proportional representation?

A good camera will take photos that are an accurate representation of reality. A good election is similar. Neither a camera nor an election should distort reality. Both should show the proper proportions of reality.

Distortion happens when voters vote “strategically,” meaning that voters vote keep a candidate out rather than elect their desired candidate. That happens much more with winner-take-all electoral systems than with systems based on proportional representation: Proportional systems ensure that the percentage of seats a party gets will come very close to the percentage of votes they got regardless of the results of any individual riding. 

Ideally in a “representative democracy” such as ours, we should elect representatives to represent our desired candidates. If that representative democracy uses an electoral system that is better at being representative of that then it’s better at being a representative democracy. If the representatives are elected in proportion to the people who voted for them then the result is a better representation of the voters.

That’s what an election is for, first and foremost.

Can we expect an election to, by itself, create unity?

No. We can’t expect an election to create unity in society anymore than we can expect a camera to stitch together a quilt. It’s simply the wrong tool for the task at hand. 

First an electoral system facilitates an election “outcome.” If that outcome reveals regional divisions or other divisions that create a risk for instability, then we need tools other than elections to deal with those problems. 

Fourth: Is the task of “developing unity” within the scope of the function of elections?

The scope of the mechanical function of an individual election is much narrower than the scope of the project of developing unity in society.

Developing unity in society is much more complex than the simple function of holding an election: Unity development can use tools like diplomacy, negotiation, finding common ground, etc. But a good election is not one of those tools. The function of elections in representative democracies is simply to choose representatives that come as close as possible to matching people’s votes. Therefore electoral systems and the “outcomes” of elections should be assessed on how well that outcome represents voters. That purpose is inside their scope. However it is outside the scope of the mechanics of elections and electoral systems to assess them on how well they develop unity in society.

Fifth: Will the task of “developing unity” be better served after elections which produce DISproportional representation rather than proportional representation?

Let’s examine the fears the Trudeau expressed about regional divisions or other divisions that risk instability.

Before you can start on the project of unity and reconciliation you need truth. 

The function of an election is to tell the truth about what representatives the voters want. First you need that truth before you can begin any project of reconciliation. Honesty must precede dialogue.

The truth of what people are trying to express with their vote can only be the “whole truth” if you allow every individual voter in the whole population to have a vote that is equally effective on the outcome.
Establishing the “whole truth” entails doing our best towards universal voter equality.

If during your first step you distort the will of the people with disproportional representation and an unrepresentative election then your later attempts at reconciliation will fail. 

If you choose an electoral system to try to distort the will of the people and make it produce outcomes which are disproportionate to what voters want, and if you do so even before you have even seen the true will of the people, then that disproportionate distortion is not a good foundation for the later attempts at dialogue, diplomacy and reconciliation. Those who have been treated unequally will not want to carry on a conversation that started based on inequality.

First we must allow the voice of all the people to be equally and proportionately heard through a proportional election, and then, once they have all been equally heard and acknowledged, only then can an honest conversation begin in the spirit of mutual respect for each other’s equality.

If you begin by denying a large proportion of the population the right to express themselves in an election then this is not a foundation for a dialogue of mutual respect. That mutual respect comes from everyone being treated as equals when they vote. 

We need voter equality first. That equality comes from applying the Golden Rule of Reciprocity to our electoral systems. Treat others as you want to be treated.

The function of an election is to recognize and acknowledge what voters are trying to say before you begin the process of negotiation. That “recognition and acknowledgement” stage is a crucial step that must precede any negotiation or compromise dialogue. 

That sequence is important in conversations of all types.  To develop initial trust, first the voices in a conversation must be equally acknowledged, heard, listened to, and recognized. It’s only after that foundation of equal respect has been given that a conversation can then proceed with all parties on an equal footing.

If that first step (ie an election) leaves half the voters without a voice and without a representative that they voted for, then that first stage is not good enough at respecting everyone as equals. That is what happens with the First Past the Post electoral system. See link.

Also, if you use that first step (ie. an election) to try to corral everyone into only two “big tent” parties, then that is a manipulative abuse of that first step. It is not a genuine acknowledgement of all equal voices in a conversation. The act of corralling everyone into two “big tent” parties is effectively what happens in electoral systems with ranked ballots in single member ridings (which is just another winner-take-all system). See link.

On the other hand, the phrase “proportional representation” refers to the best effort at recognizing voter equality. That commitment to a mutual recognition of each other’s equality is the best and the most stable foundation for any future attempts at negotiation and cooperation. That’s one of the main things that lays the groundwork for genuine long term stability.

Footnote: Ranked ballots can be used to produce proportional results IF the ridings have multi members. See this link on Proportional Ranked Choice Voting. (STV) (from Fair Vote Canada)

Proportional Representation and Public School Curriculum

If public schools would shoulder more of the responsibility to educate students about electoral systems then graduates of those schools might not be so easily fooled by people who purposely manipulate the public’s lack of knowledge of electoral systems.

  
Often the public must be first educated on various electoral systems before they can clearly recognize the unfairness of Canada’s electoral system, and be motivated to change it. Therefore, if public schools would shoulder more of that education responsibility, then that would reduce the burden of work for advocates of electoral reform: It would free up more of their time and money to focus on things like reform advocacy (ie. Fair Vote Canada), and the Charter Challenge for Fair Voting.
 
How is the curriculum developed? (Education is the jurisdiction of provincial governments.) If there is a certain government in power with a certain agenda, can a public school curriculum be politicized?

 
Good question: In 2015, the Ontario Progressive Conservatives criticized a certain sex education curriculum as ideological and later scrapped it when they formed government in 2018. Parents will now be able to exempt children from some of Ontario's new sex-ed curriculum. (Nevertheless that new curriculum is similar to the 2015 version.) See link.

So how much do public schools teach about electoral systems?

Here is some research into the current Ontario Secondary School curriculum called “Canadian and World Studies”:

At this link look at the left sidebar, see PDFs.

PDF: Grade 10 CHV2O – Civics and Citizenship (compulsory course):

Main Heading: B: Civic Awareness; Subheading: B2. Canadian and Indigenous Governance Systems

Pg 13: B2.8: “[By the end of this course, students will…] demonstrate an understanding of the electoral process”

PDF: Ontario Curriculum, Grade 9 and 10:

Main heading: A - Political Inquiry and Skill Development; Sub heading: A1 – Political Inquiry

Pg 158: A1.7 [Assignment (optional topic ideas)]: “…a debate on alternative electoral processes…”

Main Heading: B - Civic Awareness; Sub heading: B2 - Governance in Canada:

Pg 161, 162: 

B1.4 - communicate their own position on some issues of civic importance at the local, national, and/or global level (e.g.,….electoral reform…)
B2.5 - identify Canada’s form of government and demonstrate an understanding of the process of electing governments in Canada (e.g., the first-past-the-post electoral system)……“Why does the popular vote not always give a clear indication of the number of seats won by the parties?”

 
PDF: Ontario Curriculum: Grade 11 and 12 (not compulsory):
The words “proportional representation” are found in these two places:

Main heading: E. Rights And Power In The International Community; Sub heading: E.1: Influence, power, and decision making:

Page 540: E1.4 Explain the requirements for a democracy, and describe the characteristics and the strengths and weaknesses of different types of electoral systems used in democratic states (e.g., single-member plurality, proportional representation, run-off systems)…. Why are some groups trying to introduce proportional representation to Canadian electoral politics?”

Pg 568 (Glossary):

proportional representation. A voting system in which the number of seats held by each party is in proportion to the number of votes each party received, rather than, as in a single member plurality, the number of ridings won by each party.

Here’s another possibly relevant point that relates to the Charter Challenge for Fair Voting:

p 456, Human Rights: “Which Charter right ensures that Canadians have the opportunity to participate in regular elections?”

I’ll close with this question: Are other provinces doing better or worse than Ontario on this? Could other provinces learn from this Ontario curriculum?