Wednesday, June 1, 2022

A Shared Commitment to Fairness: Fair Vote Canada and Charter Challenge for Fair Voting

The first sentence of the Fair Vote Canada Statement of Purpose, adopted by its members on August 21, 2009, speaks of “the right of each citizen to equal treatment under election laws and equal representation in legislatures.” (1)

“Equal treatment,” being guaranteed in the Canadian Charter under Section 15, is also one of the two main pillars of the Charter Challenge for Fair Voting, which had its beginnings in 2017.

Thus, “equal treatment” is a common goal for both Fair Vote Canada and the Charter Challenge for Fair Voting. This common foundation speaks to their shared commitment to fairness, and their shared “statement of purpose” which guides them both.

In 2012, some in Fair Vote Canada were hesitant to launch a Charter Challenge

In April 2012, five years before today’s Charter Challenge was officially born, I was at a Fair Vote Canada AGM in Toronto when someone asked, “Why don’t we start a Charter challenge?” One person’s answer was that we feared that a negative judgement in the courts would create a permanent barrier to reaching our goal through political processes.

But with further investigation, those fears were calmed substantially for me – especially later in 2019, when Nicolas Rouleau, the appellate and constitutional lawyer now working on the Charter Challenge for Fair Voting, indicated that the “worst case scenario” would most likely not be what we had feared, but instead a “partial victory” which would likely still substantially help to advance a future case. Rouleau described a partial victory as being further guidance from the courts as to what evidence the judge was seeking (2).

2017: How We in the Fair Vote Movement Came to Weigh Our Options Anew

As history would have it, the act of comparing “worst case scenarios” encountered a twist in the plot when, in 2017, Trudeau abandoned his promise to end the First Past The Post electoral system. At that point, all of us in the fair vote movement had to do a rethink and weigh our options anew. History shows us that since Trudeau was not the first person to abandon such a promise, he will likely not be the last. In 1926, MacKenzie King also abandoned his original interest in the issue.(3)

Trudeau's abandoned promise made it clear that we needed to use more than just political attempts to get to our goal of fair voting: We needed to also include an additional strategy that involved the independence of the courts – to detour around the inherent tendencies of politicians.(3)

It was in that 2017 context that the Charter Challenge project came together.(4)

It’s important to note that Fair Voting BC initiated the Charter Challenge with RĂ©al Lavergne, the former President of Fair Vote Canada, on the advisory board during initial stages of the project. (5)

The Ongoing Complimentary efforts of Fair Vote Canada and the Charter Challenge

Nowadays, if I mention the Charter Challenge case to some people, and they seem uneducated about the topic of proportional representation in general, I then give them both of our links: one link to our Fair Vote Canada site, and one to our Charter Challenge site.

I give them both links because Fair Vote Canada has always done a stellar job at educating people who are at any level of knowledge of fair voting; and this educational expertise and experience can be very helpful for those who want to learn about any and all avenues to “the right of each citizen to equal treatment under election laws and equal representation in legislatures.”

Those Complimentary Efforts would continue to be needed after a "Best Case Scenario" Win by the Charter Challenge:

If the Charter Challenge for Fair Voting wins more than just a partial victory and gets the court to make a declaration that First Past the Post is unconstitutional, then at that point there would again be a need for the Charter Challenge to continue to work in tandem with Fair Vote Canada’s capacity to educate the public. Here’s why:

If the courts order the government to change our electoral system, the government would, in the words of Nicolas Rouleau, “craft a system based on public response (...and hopefully [after our arguments]…it's in a straight jacket and can't justify any system beyond proportional representation…).”(6)

When “public response” is again involved, this is where Fair Vote Canada’s proven expertise and capacity to educate the public will again play a huge role in getting the best outcome possible.

Those Complimentary Efforts would continue to be needed after a "Partial Win" by the Charter Challenge:

One type of “partial victory” is where we get a ruling that says, “There has been a breach of the Charter, but the government now has an opportunity to justify the breach.” (7)

At that point the burden of proof is on the government to show why they are justified in the breach.

After that we have to show that the government rationale for justification is insufficient.

It’s important to note that the government arguments will be subject to public scrutiny. This will put added pressure on the government to have strong arguments.

It would make the government look bad from a public perspective or a “public narrative” if they said, “We don’t care if this individual voter’s rights have been infringed upon.” (8) 

Public scrutiny is more powerful if the public is better educated on electoral systems in general. That is where Fair Vote Canada can play an vital role with its proven capacity to educate the public.

Footnotes:

Footnote 1: At the Fair Vote Canada site, hover over “About Us” and choose “Statement of Purpose” (PDF) 

Footnote 2: See 39:00 in video entitled, “Charter Challenge for Fair Voting Webinar - December 16 2019” found at this link. Especially see 42:15

Footnote 3: See Lawrence LeDuc’s affidavit in the Charter Challenge case at this link. (PDF)
 
LeDuc argues that there is an inherent conflict of interest which causes politicians to abandon this interest after gaining office. “Opposition parties often express support for reforms while they are in opposition, then lose interest in the same ideas when they are in government. Furthermore, the political success of parties in power tends to be closely tied to the electoral system that enabled it.” (page 25, point 50)

Footnote 4:
On February 1, 2017, the newly appointed Minister of Democratic Institutions Karina Gould announced that the government was no longer pursuing electoral reform (despite having promised it in the 2015 election).  See link.  In less than a month a trial balloon email was sent out as a request for pledges to initiate a Charter Challenge. It was a success.

Footnote 5  See Charter Challenge Team / Advisory board at this link.  

Footnote 6:
See 59:16 in the Voices from the Movement video (May 2022) at this link.

Footnote 7: See Charter Challenge for Fair Voting Webinar - December 16 2019 at this link. See 39:00. Especially see 43:21

Footnote 8:  See Charter Challenge for Fair Voting Webinar - December 16 2019 at this link. See 42:15