Eight years ago, in the lead-up to the 2015 federal election, Justin Trudeau famously promised that, “As prime minister, I’ll make sure the 2015 election will be the last under first-past-the-post.” There may be mounting uncertainty about the next federal election, but one thing is for sure: whenever it may be, it will remain under the first-past-the-post system.
First-past-the-post (FPTP) is the electoral system that Canada inherited from the United Kingdom. It’s shared by many other commonwealth and British-influenced countries, including India, the United States, a dozen Caribbean countries and 18 African nations. In FPTP systems, the winning candidate is the one with the most votes. Winners do not need a majority of the votes, just more than anyone else.
Trudeau’s 2015 promise to end FPTP did not make its way into the Liberal platform in the 2021 election. However, it is a regular feature of the NDP and Green platforms. This is likely because FPTP disadvantages smaller parties whose support is less efficient — in other words, their support from riding to riding is more diffuse.
Moving away from FPTP would give an advantage to the New Democratic, Green and People’s parties, at the expense of the Liberals and Conservatives. However, since FPTP makes it less likely that these smaller parties will gain power, they have been unable to implement their preferred electoral system. Thus, some advocacy groups have now turned to the courts to try to force the issue.
Two organizations — the Springtide Collective for Democracy Society and Fair Voting BC — have moved forward with a constitutional challenge to Canada’s FPTP system, which will be heard by the Ontario Superior Court in September. They allege that the FPTP system violates the charter right to vote and to equality.
The thrust of their argument is that FPTP undermines the right to effective representation because it does not give citizens equal voting power, since votes for losing candidates are “wasted.” These advocacy groups also argue that FPTP discriminates against women and minorities by contributing to their under-representation.
Whether FPTP is politically unfair is not an issue that should be decided by the courts — it is a policy question.
The FPTP system has its flaws, but so does every other electoral system. Although proportional representation — the applicants’ preferred system — has been adopted by many countries, no democratic utopia exists on earth. Israel, for example, has a closed list proportional representation system, and yet remains notoriously factionalized and faces frequent elections due to unstable coalitions.
Canada’s FPTP system is perfectly constitutional. The Constitution Act, 1867 includes provisions that establish a constituency-based federal electoral system. Under FPTP, every constituency in the House of Commons is represented by a single member. It is uncontested that this system has been virtually unchanged since Confederation.
The charter cannot displace these prior constitutional provisions that permit a FPTP system. The Supreme Court of Canada has held in multiple decisions that the charter was not intended to abrogate the provisions of the Constitution Act, 1867.
Indeed, when the charter was enacted, it expressly preserved (with few exceptions) the foundations of Canada’s existing constitutional order. Section 53 of the Constitution Act, 1982 states that, unless expressly repealed, existing constitutional statutes “shall continue as law in Canada.”
There is a presumption that the laws and practices that were constitutional as of 1982 — including FPTP — remain so. The patriation of the Constitution did not sacrifice everything that preceded it on the alter of constitutional progress. Rather, it marked a reaffirmation of the legal tenets and commitments that animated Canada’s original constitutional settlement. The charter was not intended to upend all — or even most — of what came before it.
On this point, the advocacy groups arguing against Canada’s FPTP system bring up the famous “living tree” metaphor: namely, that the Constitution is a “living tree” capable of growth and must be read in a broad and progressive manner in order to adapt to changing values.
This metaphor was first used in the Judicial Committee of the Privy Council’s (JCPC) 1929 ruling in Edwards v Canada (also called the Persons Case) and is frequently misunderstood. While Canada’s Constitution can be fairly conceptualized as a “living tree,” as the JCPC noted, the growth of this tree is constrained by its “natural limits.”
The charter is not an empty vessel to be filled with whatever meaning we might wish from time to time. As the Federal Court of Appeal recently articulated, constitutional interpretation is not based on “some vague feel, spirit or vibe.”
The charter is constrained by the language, structure, history, traditions and the underlying philosophies of our society. Its interpretation is a rigorous, objective and disciplined judicial task guided by the words of the Constitution itself, viewed in light of their historical context, their larger objects and, where applicable, the meaning and purpose of other constitutional provisions.
Canada’s system of FPTP voting is not perfect — no electoral system is. But the system cannot be ousted by the charter through vague inference or implication. It is up to Parliament to decide if the system should be changed.
Simply put, FPTP remains constitutional because nothing in the Constitution’s text expressly says otherwise.
This article originally appeared in the National Post. It is co-authored by Kristopher Kinsinger.
