Despite their intrinsically political nature, election laws which infringe
the Charter are as susceptible to court review and remedy as any other
type of statute. Recent events in several provinces and in Ottawa indicate
that the executive and legislative branches of government are reluctant
to proceed with meaningful electoral reform. The time has come for advocates
of change to take their chances with the judicial branch.
The most effective attack on the Single Member Plurality (SMP) system would
be to challenge sections 68(1) and 313(1) of the Canada Election Act. Section
68(1) enshrines the single-member aspect of our electoral system, which
is reinforced by the requirement in s.313(1) that only one candidate can
be elected in a given constituency. The latter section also prescribes
the plurality formula for determining the winner. Because these are the
two defining characteristics of SMP, those sections are the logical targets
of a Charter challenge.
The strongest legal argument is that SMP infringes the guarantee of democratic
rights in s.3 of the Charter. The Supreme Court of Canada has identified
two purposes of the right to vote: (a) the right of each citizen to effective
representation in the legislature, and (b) the right of each citizen
to play a meaningful role in the electoral process.
The guarantee of effective representation means the right to have a
voice in the deliberations of government and the right to bring one's
grievances and concerns to the attention of one's government representative
in other words, to have an elected ombudsman responsible for assisting
constituents in their dealings with the federal government.
Effective representation entails relative parity of voting power: 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. Where the unequal weighting of votes
is not required to ensure better government, dilution of one citizen's
vote as compared with another's should not be countenanced.
The guarantee of a meaningful role in the selection of elected representatives
benefits both the individual citizen and the electorate as a whole. The
process of collectively choosing the legislature enhance[s] the quality
of democracy in this country and ensures that public policy is sensitive
to the needs and interests of a broad range of citizens. This purpose
also animates the second right guaranteed by s.3: The right to run for
office provides each citizen with the opportunity to present certain ideas
and opinions to the electorate as a viable policy option; the right to
vote provides each citizen with the opportunity to express support for
the ideas and opinions that a particular candidate endorses.
The contextual approach explains why the guarantees in s.3, which refer
only to individual voters and candidates, have also been applied to political
parties. Parties provide the context within which most Canadians exercise
their rights to vote and to run for public office. Consequently, a successful
Charter challenge to SMP must go beyond the infringement of individual
rights, and target the ways in which our electoral system benefits some
political parties while harming others.
We know that SMP benefits larger and more regionally-concentrated parties
at the expense of smaller parties and those with regionally-dispersed support.
In so doing, it infringes the rights of individual voters in three ways:
It violates the guarantee of effective representation by denying the
supporters of some parties a voice in the deliberations of government.
It violates the requirement of relative voter parity. For example, In
the 1993 election, it took 34.36 times as many PC voters as Liberal voters
to elect a candidate.
It deters some voters from casting ballots for their preferred party or
candidate, because they know that their vote will not affect the outcome
of the election.
The infringements of s.3 caused by SMP are not confined to individual voters
and candidates. A law which tilts the playing field in favour of some political
parties at the expense of others deliberately or otherwise - will also
be found to infringe s.3. The majority ruling in Figueroa established that
political parties, regardless of their size or vote share, act as both
a vehicle and outlet for the meaningful participation of individual citizens
in the electoral process.
It follows that a law which penalizes smaller parties violates s.3, because
it undermines both the capacity of individual citizens to influence policy
by introducing ideas and opinions into the public discourse and debate
through participation in the electoral process, and the capacity of individual
citizens to exercise their right to vote in a manner that accurately reflects
A challenge under s.15(1) the guarantee of equality rights is also
possible. The jurisprudence on equality rights, and the test for proving
an infringement, are too lengthy and complex to be captured in a brief
summary. There are, however, two main points:
First, it is possible to demonstrate, on a balance of probabilities, that
SMP makes it more difficult for female candidates and would-be candidates
(relative to their male counterparts) to secure election to the House of
Commons. Therefore, it is possible to argue that women suffer from systemic
discrimination under SMP. Moreover, the Supreme Court has ruled that the
interpretation of the Charter must be consistent with Canada's international
human rights obligations. The Convention on the Elimination of All Forms
of Discrimination Against Women, require member states to abolish all legal
barriers to women's political participation on equal terms with men.
Secondly, it is more difficult, but still possible, to prove that supporters
of smaller parties (e.g. the Greens) and regionally-dispersed parties suffer
discrimination relative to supporters of larger parties (e.g. the Liberals)
and regionally-concentrated parties (e.g. the BQ).
When a government seeks to justify a Charter infringement, it must identify
one or more pressing and substantial objectives which are served by the
impugned law. This requirement has proved tricky in previous challenges.
Identifying the objective of SMP will be especially problematic for the
federal Department of Justice (DOJ), because our electoral system appears
to have been inherited from Britain without any formal debate and hence,
without a clear statement of its intended purpose.
A recent study by the Institute for Democratic Education and Assistance
(IDEA) lists nine benefits which are commonly attributed to SMP. All but
two are empirically unfounded, at least in Canada. The exceptions are promoting
a link between constituents and their representatives, and being simple
to use and understand. Only the former is likely to qualify as pressing
and substantial since most MPs perceive constituency casework as the
most important part of their job.
The central question at this stage of a challenge to SMP can be formulated
as follows: do the harmful effects of SMP including but not limited to
the Charter infringements outweigh its beneficial effects on Canadian
politics and government? If the answer is yes, the challenge succeeds and
a remedy must be imposed.
In assessing the objectives attributed to SMP most of the beneficial
effects often associated with that system have little if any empirical
basis. At this stage, the Government is likely to refer to one particular
passage from the majority ruling in the Saskatchewan Boundaries case: only
those deviations [from relative voter parity] should be admitted which
can be justified on the ground that they contribute to better government
of the populace as a whole, giving due weight to regional issues within
the populace and geographic factors within the territory governed. The
claim that the denial of effective representation is justified by the
provision of better government can be rebutted in any number of ways,
depending on the interpretation of the latter phrase.
If better government is taken to mean more stable and long-lasting Cabinets,
one could compare the average longevity and stability of coalition governments
in Germany, Sweden, and other PR countries to the average longevity of
majority and minority governments in Canada (both national and provincial).
If better government means that the Cabinet is held directly accountable
to the voters, the New Zealand experience suggests that MMP performs just
about as well on this score as SMP once allowances are made for the necessary
political adjustments to a new system.
If better government means the creation of public policy which reflects
the priorities and preferences of a majority of electors, PR more precisely,
the coalition governments which it often requires outperforms SMP.
If a court finds that an impugned law infringes the Charter, and the infringements
cannot be justified under s.1, it will impose a remedy.
In a case involving election law, the most likely remedy is a suspended
nullification. The court would declare the impugned provisions to be unconstitutional,
and set a date on which that declaration would take effect (likely between
twelve and twenty-four months from the date of the ruling). If Parliament
did not remedy the infringement before the deadline, the provisions would
A blueprint for electoral reform already exists. The Law Commission of
Canada has completed an extensive report on electoral systems, which makes
any further investigation (e.g. a Royal Commission) unnecessary. In June
2005, the House of Commons Standing Committee on Procedure and House Affairs
advised the former Liberal Government to establish a two-track procedure
for achieving electoral reform: a Special Committee of the House of Commons
combined with a citizens' consultation group. The October 2005 Government
Response endorsed the substance of the recommendations, although it rejected
the Committee's demand that the two tracks be completed by early 2006.
(In the event, of course, the process would have been disrupted by the
general election earlier this year.) In the same document, the Liberal
Government claimed to have taken steps to establish a deliberative citizen
consultation process. I am unaware of any evidence to substantiate that
In its recent Throne Speech, the new Conservative Government promised to
build on the Committee's report. If a Charter challenge to SMP were to
succeed to any degree, even in a lower court, that would almost certainly
provide the impetus needed to force the government to honour the Throne
Speech promise. In the absence of such an impetus, electoral reform is
unlikely at best.