‘A Civil Rights Issue’: Groups Hope Courts Will Toss Out First-Past-the-Post

Two groups wanting the courts to toss out Canada’s first-past-the-post electoral system are hoping to file their case before next fall’s federal election.

“It’s an important issue that we think the courts ought to weigh in on, because it’s fundamentally a human rights and civil rights issue,” said Mark Coffin, the executive director of Springtide, a Nova Scotia organization that advocates for more responsive and resilient democratic institutions and leaders.

In provincial and federal elections, “the reality is that the majority of voters cast a vote for a candidate that doesn’t end up in the legislature or the House of Commons,” Coffin said.

He gave the example of Atlantic Canada, where after the last federal election every MP came from the Liberal party, even though many people voted for Conservative and NDP candidates.

Or on the flipside, Alberta, where 29 out of 34 MPs are Conservatives, and supporters of other parties are poorly represented.

The result is “large groups of people who for the term of a majority government are just without what we would argue is effective representation, representation that they have an influence in choosing,” Coffin said.

Springtide is working on the challenge with Fair Voting BC. The two organizations hired constitutional lawyer Nicolas Rouleau to prepare a strategic brief, which he completed, and are now raising money to take the case to court.

“We have the outlines of our argument and the next step is to create the actual application and the supporting affidavits,” said Antony Hodgson, Fair Voting BC president. The groups have so far raised about one-third of the $70,000 they expect to need.

The two groups began work on the challenge in early 2017 when it became clear the Liberal government would renege on the promise to change the federal voting system, but their preparations were put on hold during B.C.’s recent referendum on electoral reform.

During the 2015 campaign, Justin Trudeau and the Liberals had repeatedly promised that election would be the last federal vote conducted with a first-past-the-post electoral system.

Coffin said he’s supportive of the argument that electoral reform is a political issue and should therefore be left to politicians rather than the courts.

“I think it’s definitely preferable, less expensive, less harm is done, when politicians choose to respect and protect civil rights of any kind before the courts are forced to intervene,” he said.

It’s not, however, clear that politicians can be trusted to make the needed change, he said.

“The self-interest of politicians is so tied to the nature of the electoral system. This is an issue where not only is it the case that politicians haven’t come to protect these kinds of rights, it’s not clear that they can really be trusted to protect our democratic rights in this way.”

Hodgson said some people have suggested the court challenge is anti-democratic considering the failure of various provincial referenda on changing the electoral system.

“I think the answer to that lies fundamentally in thinking about voting reform as a civil rights issue,” he said. “It’s very much in our minds like when women first got the vote, and there was lots and lots of opposition to women being given the vote.”

Or in the United States, he said, for many decades there was strong opposition to African-Americans getting the vote. “In many cases there were votes in the legislature or referenda that opposed the ultimate change that was accepted,” he said.

As Coffin put it, “Even if they were good [referenda] processes, there aren’t many examples in history where the majority has been ready to grant any kind of civil rights to any kind of group that we now might see as deserving protection from the law.”

There are many people who feel poorly served by the first-past-the-post electoral system, Coffin said. Many feel compelled to vote for a candidate who has a chance, even if that candidate isn’t really in line with their core political beliefs.

“That’s fundamental to what we’re going to argue,” he said. “In order to see representation, or the impact of your ballot, right now there’s an unhealthy incentive to vote for somebody who’s not your first choice.”

Many Liberal voters in the last election were making that strategic calculation, he said. “A lot of people did that in 2015 thinking it would be the last time.”

Canada has had the Charter of Rights and Freedoms since 1982, and various institutions including the courts have been working out its implications since then, Hodgson said.

Past court decisions have found that the right to vote includes a right to effective representation.

The courts have found, for example, that ridings should have similar numbers of people and that groups of voters have a right to be included in ridings where they are likely to have a representative who reflects their views.

“It hasn’t yet been really tested on the question of whether individual voters have very different abilities to elect representatives who reflect their own perspectives,” Hodgson said. “We have this right to effective representation, and fully half of the voters don’t see their votes actually affecting the election of anybody to the legislature.”

It’s not enough that people from the party you support are elected if they aren’t from your region, Hodgson said.

“Even if you are living in Prince George and support the NDP, you don’t feel represented by an NDP MLA from Vancouver who has never visited Prince George,” he said.

He cited the 2004 New Brunswick case Raiche v. Canada that found francophone voters were rightly apprehensive to be lumped into a riding that was predominantly anglophone.

The court recognized their right to be included in a neighbouring riding that was also largely francophone.

“We think that decision should be teased out and the implications drawn out for our current voting system,” Hodgson said.

“The courts have in effect said one MP cannot represent the full diversity of citizen perspectives within their geographic riding, that individual groups of voters have a right to pick an MP who is more aligned with their perspective.”

Organizers will file the case in a provincial court, likely B.C. or Nova Scotia, since that’s where the two organizations are based, Hodgson said. A win would invalidate first-past-the-post countrywide for federal elections, he said.

The court would then hopefully order the government to adopt a system that does comply with the charter, which advocates like him believe would be one that is more proportional, he said.

Hodgson said a win wouldn’t have a direct effect on provincial or territorial elections, but it would provide a strong precedent that advocates could use to challenge the current electoral system.

Whatever happens in provincial court, the organizers are anticipating the losing side will appeal the case to the Supreme Court of Canada and that the process could take three years to arrive at a final decision.