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.

Translating and Assessing Christopher Kam’s blog post on The Representation-Accountability Trade-Off in Electoral Systems

Christopher Kam introduces his blog post by saying it’s “mainly just a review of some literature on representation, accountability, and electoral systems.”

I greatly appreciate Kam’s effort to educate us on these important topics.

His last sentence, however, could be interpreted to be a subtle value judgement. That sentence invites further scrutiny, which is what I do at the end of this blog post.

Nevertheless, I’ll begin by attempting to translate his educational efforts into lay language. In doing so, I hope to educate those of us (myself included) who haven’t had time to read all his sources.

“Representation” happens when voters choose a representative.

“Accountability” happens when voters hold those representatives accountable by either rewarding them by re-electing them again, or by punishing them by unelecting them.

A voter often “chooses a representative” presumably because the voter thinks that they will act in a desired way in the future.

But “holding the representative accountable” presumably means that voters respond to their behavior in the past.

According to Kam, accountability is a strong feature of plurality electoral systems, such as First Past the Post; but it’s not a strong feature of proportional representation systems. Here’s his explanation quoted:

[Under plurality electoral systems, such as First Past the Post,] “a small loss of votes can result in a significant loss of seats. Voters can thus inflict significant punishment on the incumbent merely by withdrawing a few percentage points of the vote….”

“…[Whereas under proportional representation electoral systems, the following happens] …Firstly, PR tends to produce coalition governments, and where several parties control government it is more difficult for citizens to apportion credit or blame for political outcomes (Powell and Whitten 1993; Duch and Stevenson 2008).  Secondly, the relationship between votes and seats under PR is neither as steep as under plurality rule nor so determinative of government status.  This is because a party’s ideological position may grant it legislative bargaining power in excess of its seats share.  Parties in this advantaged position are thus somewhat insulated from shifts in their vote shares.”

After more discussion, Kam eventually ends with these concluding paragraphs:

“The fundamental problem in evaluating [all] electoral systems in terms of these criteria is not necessarily that there exists an unyielding trade-off between representation and accountability.

It is that we cannot reliably distinguish representative from unrepresentative electoral outcomes, either because these outcomes are products of a voting cycle or because our measures of representation are ambiguous. 

The situation is no better with regard to accountability; even if we can state that the clarity of responsibility and the capacity to sanction incumbents is better under electoral system x than under electoral system y, there is no assurance that such conditions are sufficient to motivate or constrain office-holders.

It seems that we lack reliable means to connect electoral systems to two of the key guiding principles of representative government. 

While this is a pessimistic conclusion, it should encourage citizens to carefully scrutinize politicians’ claims that some electoral systems are inherently “fairer”, “more democratic, “representative” or “effective” than others."

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

My own analysis:

I appreciate Kam’s effort to educate us on these important topics. But his last sentence could be interpreted to be a subtle value judgement.

In that sentence, Kam appears to be subtly implying the following logic:

Premise: No electoral system is perfect.

Conclusion: Therefore no system is better than any other

That conclusion doesn’t follow from the premises.

Kam has shown conclusively that no system is perfect, but he has not shown that no electoral systems are inherently “fairer”, “more democratic, “representative” or “effective” than others.”

A system does not have to be shown to be perfect in order to be shown to be “fairer”, “more democratic, “representative” or “effective” than others.”

Did Kam get the “accountability” assessment correct on Proportional Representation systems versus plurality systems such as First Past The Post?

According to Kam, “accountability” is a strong feature of plurality electoral systems, such as First Past the Post (FPTP); but it’s not a strong feature of Proportional Representation (PR) systems.

First let's look at the way "accountability" is assumed to function: It's assumed that “accountability” happens when voters hold those representatives accountable by either rewarding them by re-electing them again, or by punishing them by unelecting them. But Dennis Pilon poses this question: "Is it realistic to suggest that a Conservative supporter will make their Conservative representative accountable by voting for a non-Conservative candidate?" (More arguments and evidence against the "accountability" argument can be found in Pilon's paper, "Myths, Damn Myths, and Voting System Change: How Canadian Political Scientists Misrepresent Democratic Reform" which can be downloaded from the Fall 2022 issue of Canada Watch at this link.)

Second, the evidence is not as strong as Kam proposes: Here is a quote from the affidavit that John Carey submitted in the Charter Challenge for Fair Voting, found at this link. (Download PDF)

Quote from Carey's point 55 (pg 27): "A number of well-regarded studies that measure government performance with standard economic indicators and examine how the vote shares of governing parties correspond to those indicators suggest little difference between FPTP and PR in how voters are able to attribute responsibility (Blais and Bodet 2006, Golder and Stramski 2010, Powell 2011)." (The quote continues with more evidence too long to list here.)

Jesse Hitchcock, in her blog on the website of the Charter Challenge for Fair Voting, writes about Carey's assessment (see this link): "He also argues that “despite the intuitive appeal of theory connecting FPTP to government accountability, scholarly research does not show a clear advantage,” and says that “recent research affirms that FPTP and PR are equally capable of fostering a clear link for voters between parties and responsibility for government decisions, particularly when parties are grouped into distinct policy camps and when district magnitude in PR systems is kept in the low-to-moderate range,” so he finds no support for the claim that our current system leads to more accountability than the proportional alternatives."

Carey continues in point 56 (pg 28), "...individual electoral accountability may be compromised in a district that is not competitive between parties such that there is, effectively, no chance the dominant party's standard-bearer will lose."

Also consider this quote from Antony Hodgson (found at this link): 

"it is a happy fact that most of the issues that reform opponents are ostensibly concerned about (such as accountability and stability) are in fact actually enhanced under properly representative voting systems.

For example, regarding accountability: with our current system, a significant majority of voters can oppose a local MP and still see that MP elected.  In contrast, under a voting system such as the Single Transferable Vote, in which each MP can only be elected if a seat’s worth of voters explicitly name them on their ballots, the MP must maintain the trust and support of those voters or else they could give their top preferences to other candidates (often from the same party) and so replace an underperforming MP without being forced to switch parties.  

On the flip side, a responsive and respected MP can be sure of being re-elected if they maintain the loyalty of those voters who initially elected them – voters who support other candidates or parties cannot take away from that MP’s core support."

End Quote 

I, myself, would like to expand on Carey's last point:

I, myself, would reduce the “accountability” score that Kam gives to plurality systems such as FPTP:

Under FPTP, when parties strategize about how to maximize their seats in an election, it’s likely that they will strategically put much more of their energy and dialogue with prospective voters –and therefore more of their accompanying “accountability”-- into key target battleground ridings. “Battleground” means these are ridings that they either risk losing, or have a chance of taking from another party.  

Conversely they will put less energy and dialogue with prospective voters –and therefore less of their accompanying accountability-- into the ridings where they are very confident of a win, or where they know they can’t possibly win. In these non battleground ridings, there’s less accountability to voters.

If it can be shown that there are more of those non battleground ridings under a FPTP electoral system than under PR systems then, if we use that metric alone, that’s evidence that there is less accountability under FPTP than PR.

Under PR, all ridings are battlegrounds because the final election result will draw votes from every riding. However under FPTP, and other “winner take all” electoral systems, a party can often win a seat majority by strategically directing and focusing their energy on “less than all” of the ridings.

That difference shows that there are more non battleground ridings under FPTP than under PR. If we use that metric alone then this is evidence that there is less accountability under FPTP than under PR.

Admittedly it is not correct to use that metric alone. Nevertheless that metric is missing in Kam’s assessment of proportional systems versus plurality systems.

Because of the above, in terms of “accountability,” I would give a low grade to both proportional representation systems and plurality systems.

Even if plurality systems get a slightly better grade in “accountability” (due to the rationale provided by Kam) it’s not dramatically better than PR systems (due to the rationale I provided above.)

I attempt to express this using the below table -- for illustration purposes only.

I also use that same illustrative table to express the differences between PR and plurality systems when we measure their respective performances in “representation,” as opposed to “accountability.” Kam agrees that PR outperforms plurality systems when using the measure of “representation.”

The following table, although not based on any direct data collection, is an illustration of how to express all of my above analysis:

	Proportional representation electoral system	Plurality electoral system
Representation	5	1
Accountability	1	2
Total score	6	3

 

Notice that the total score of a PR system is more than Plurality system.

This better total score is reason to favour one type of system over another.