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Introduction to the "Green Party Case" " The Canada Elections Act Violates the Constitutional Rights of Canadians" A constitutional challenge is being launched against the Canada Elections Act by Joan Russow and the Green Party of Canada, under the auspices of the Constitutional Test Case Centre at the Faculty of Law, University of Toronto. This challenge will bring to Canadians' attention the fact that our electoral system counts votes towards representation in ways which are among the most arbitrary and unjust in the free world. Canada is one of the last established democracies that still uses the rule of winner-take-all, or first past the post, to allocate representation in Parliament. Winner-take-all systems give seats in Parliament, and the corresponding right to represent specific geographic constituencies, solely to the person who wins the greatest number of votes in that constituency. All votes cast for other candidates and parties are completely disregarded. In almost every other democratic country, election laws are based on the principle of proportionality, in which parties are represented in Parliament in accordance with the percentage of votes each receives. Electoral systems based on a system of winner-take-all were designed for an era in which the right to vote was a privilege of the propertied class. They are now known to be radically deficient in several areas. As it turns out, many of the deficiencies of these systems also violate Canada's constitution. First, our winner-take-all system results in the systematic underrepresentation of women. Typically, twice as many women are elected in countries that base membership in their national legislatures on the principle of proportional representation than sit in the Canada's House of Commons or any of our provincial legislatures. This is a breach of the equality rights of Canadians, guaranteed by section 15 of the Charter of Rights and Freedoms. Second, our electoral system, paradoxically, suffers a huge democratic deficit. It strikingly misrepresents the popular will in Parliament, by awarding seats to parties regardless of the support they received in the vote. Routinely, governments are elected in this country with huge majorities in terms of Parliamentary representation, even while they received the support of a only minority of voters. Often, a party has been allowed to assume the right to govern Canadians, even while another party received a greater share of the popular vote. In the last two Quebec elections, for example, and in two of the last three in B.C., the Parti Quebecois and the NDP respectively formed the government, even though in both provinces the Liberal Party won the most votes. This is a clear breach of Canadians' voting rights, as guaranteed by section 3 of the Charter. By contrast, proportional voting systems require that governments be able to claim the support of at least half the voting population, and further requires that all votes cast be counted in terms of representation in the legislature. Contrary to some claims, the rights violations caused by our electoral system are not justified by other benefits. In fact, one of the most dysfunctional aspects of a winner-take-all system in states like Canada, with significant regional divisions, is the way they fracture the unity of the country by disproportionately favouring parties, like the Bloc Quebecois and the Canadian Reform Conservative Alliance (formerly the Reform Party), whose supporters are clustered geographically in one part of the country. In turn, our system unfairly penalizes the supporters of parties like the Progressive Conservative, New Democratic and Green Parties who draft platforms to appeal across the country. This bias in favour of regional parties has been documented by political scientists for more than thirty years, and its prejudicial effects have been especially acute recently. In the 1993 federal election, for example, ballots cast for Progressive Conservative candidates were worth practically nothing. Even though they received more votes than the Bloc and almost as many as Reform, the Conservatives won only two seats in the House of Commons, while the others got 54 and 52, respectively. Similarly, our current system of electoral injustice is not justified, as some would say, on the basis that it promotes stability, and avoids the political upheaval observed in other countries like Israel and Italy. This alleged justification is embarrassingly vulnerable to the facts, which demonstrates that such instability is the result of factors in the political environment of these countries which are not duplicated in Canada. Moreover, these countries are extremely few and far between, and do not begin to represent the stability and effectiveness of proportional electoral laws as they operate in most democratic countries around the world. Finally, the electoral laws in these countries are marked by specific rules, such as an extremely low 'threshold', or minimum percentage of the vote required to gain seats, which need not form a part of a new electoral system in Canada. Since World War II, with a threshold of 5%, Germany has had only 5 leaders, and is regarded as one of the most stable nations in the democratic world. The inequities and deficiencies of winner-take-all laws have been known for a long time and most established democracies, including the Netherlands, Germany and Scandinavian countries, have switched to PR; in some cases almost a hundred years ago. Many countries have converted in the last ten years, including New Zealand, Japan, South Africa and most of the newly established democracies in Central and Eastern Europe and the former Soviet Union. So far, Canada has not felt the spirit of fairness that has been embraced in other parts of the world. The established institutions of Canadian politics, in fact, have been embarrassingly resistant to change. Brian Mulroney deliberately kept the issue of proportional representation off the agenda when he set up the Lortie Commission on Electoral Reform, and even the NDP, whose representation in Parliament would be greatly enhanced under PR, in accordance with the popular vote it typically receives, has been unwilling to press the issue, largely because its provincial cousins have been shameless beneficiaries of the current regime. The Charter challenge being brought by Joan Russow and the Green Party of Canada will force an end to this complacency and complicity. It relies on evidence and legal argument that are virtually uncontested, and it stands an extremely strong chance of success. The case does not ask the court to choose a new electoral system for Canada. There are a number of different systems of proportional representation from which to choose, and such a choice must be made after all the options have been examined, and the Canadian public has been consulted. Rather, if the claim succeeds, the Court will order Parliament to undertake a comprehensive review of the different systems which better respect the right to vote and the right of equality, and decide which one best suits our needs. In effect, it will insist that Parliament have the public debate that Brian Mulroney censured more than a decade ago. In these pages you will discover the legal argument and evidence which identify the constitutional invalidity of our winner-take-all system. You will see how our system violates the right to vote in section 3 of the Charter, as it has been interpreted by the Supreme Court of Canada in earlier cases. You will see how it violates the equality rights of women in section 15 of the Charter, consistent with what the Supreme Court has said that section means in law. Finally, you will find evidence which demolishes arguments that our current system, even as it violates constitutional rights, is justified. These arguments have been made, for too long, in the absence of any clear-eyed examination of the evidence. The case provides the opportunity for an official examination of our electoral system to see whether it meets fundamental standards of justice. In this sense, it hearkens back to other bright moments in Canadian history, when the injustice of the rules governing representation in Canada's political institutions were subjected to impartial evaluation. It is no exaggeration to say that constitutional interpretation by the courts has resulted in some of the most meaningful and important changes to the political status quo in our history, most notably through the celebrated Persons Case of 1930. In Canada, we have a system of democratic rights, including the Charter, specifically so that our representatives are not given free reign to entrench rules which serve their interests, rather than ours. This case offers the chance for Canadians to ensure that our electoral laws respect the ideals of fairness which we claim distinguish Canada from many other countries in the world. Let justice be done. | |
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