Canada’s voting system is constitutional, Ontario Court of Appeal rules

A panel of three Ontario Court of Appeal judges unanimously affirmed the constitutionality of Canada’s first-past-the-post electoral system in a ruling released on Monday.

The system, laid out in the Canada Elections Act, sees the candidate who receives the most votes in a given riding or electoral district become the member of Parliament.

Fair Voting BC and the Springtide Collective for Democratic Society argued in court that the system violates the Charter of Rights and Freedoms’ guarantee of effective representation.

The groups also said the system leads to the underrepresentation of women and other groups in Parliament, breaching the Charter’s equality rights provision.

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In a proportional representation system, the number of representatives a party elects reflects the percentage of the total vote the party receives.

In November 2023, the Ontario Superior Court dismissed the challenge from Fair Voting BC and Springtide. It said that while a proportional representation system would be a fair alternative to the current system, it’s not required by the Constitution.

In its decision, the province’s Court of Appeal also rejected the groups’ key arguments.

“The electoral system is not in conflict with either the right to vote or the right to equality. It does not violate the Charter,” Justice Grant Huscroft said in written reasons delivered on behalf of another judge on the panel.

“The appellants’ arguments that the electoral system violates the Charter are, in essence, a repackaging of failed political arguments as constitutional rights violations.”

Limitations of litigating policy disputes

The expert evidence “put forward in support” of those arguments, Huscroft wrote, is “replete with highly contestable policy arguments about which reasonable disagreement abounds, not only in the academic community but amongst the public at large…

“This evidence demonstrates the shortcomings of constitutional litigation in addressing public policy disagreements.”

The short answer to the argument that the electoral system violates the Charter is that Canadian citizens are free to vote for anyone they choose, and for any reason they choose, Huscroft added.

“There is no constitutional requirement that their individual choices aggregate in a way that achieves some ideal of representational diversity,” he wrote. “Neither the political party affiliation nor the personal characteristics of the candidates who win election are relevant to the constitutionality of the electoral system.”

During the 2015 election campaign, then Liberal leader Justin Trudeau promised it would be the last federal election held under the first-past-the-post system.

Once in office, however, Trudeau’s government abandoned his pledge to replace the system.

Fair Voting BC and Springtide argued that under the current system, small political parties do not enjoy the success they deserve, creating a disadvantage for people who vote for them.

“I do not doubt that small political parties fare poorly in Canada,” Huscroft wrote. “They receive relatively few votes and invariably win few or no seats.”

But the failure of a political party cannot open the door to a claim for constitutional redress, he wrote.

“In short, the right to vote is a right to vote pursuant to the electoral system in operation — whatever that system is, and regardless of the electoral outcomes that may obtain,” he wrote.

The appellants also argued the first-past-the-post system contributes to the underrepresentation of women and minorities in Parliament.

Huscroft wrote no matter what sort of electoral system is in place, over or underrepresentation of particular demographic groups might occur from time to time.

He added that arguments based on degree of representation lose sight of the fundamental fact of the matter: that people are entitled to vote the way they want.

“This is the very essence of the freedom that lies at the heart of the right to vote,” he wrote.