TORONTO: The Canadian Constitution Foundation (CCF) has been granted intervener status in a novel case headed to the Ontario Superior Court about the constitutionality of Canada’s first-past-the-post voting system. The CCF will be arguing that the system is constitutional. The case is being heard in Ontario Divisional Court September 26-28, 2023.
First-past-the-post voting (FPTP) is Canada’s electoral system, inherited from Great Britain. Under this system, winning candidates do not need to win a majority, they just need to receive more votes than anyone else. Two organizations – Springtide and Fair Voting BC – have brought a constitutional challenge to the system. They argue that the FPTP system violates the Charter guaranteed right to vote and the right to equality because citizens do not have equal voting power: votes for a losing candidate are “wasted”. These advocacy groups also argue that FPTP discriminates against women and minorities by contributing to their under representation.
The CCF will be arguing that the system does not violate the constitution, and indeed, that provisions of the Constitution Act, 1867, establish Canada’s FPTP system by creating a system of constituency-based representation for the House of Commons where each electoral district is represented by a single Member of Parliament.
“The simple fact is that whether FPTP is politically unfair is not an issue for courts: it is a policy question. The FPTP system may have flaws, as does any electoral system,” said CCF Litigation Director, Christine Van Geyn. “Canada’s FPTP system is perfectly constitutional. The Constitution Act, 1867 includes provisions that establish Canada’s FPTP system. It is uncontested that Canada’s first-past-the-post system has been essentially unchanged since Confederation. It did not suddenly become unconstitutional because the applicants in this case have a preferred system.”
The CCF is represented by lawyers Asher Honickman and Kris Kinsinger. “Canada’s system of FPTP voting cannot be ousted by the Charter through vague inference or implication. Simply put, it remains constitutional because nothing in the Constitution’s text expressly says otherwise,” said Honickman.
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