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TORONTO: The Canadian Constitution Foundation is pleased that the Ontario Court of Appeal has dismissed a legal challenge to the first-past-the-post (FPTP) voting system. In Fair Voting and Springtide v Attorney General of Canada, the CCF argued as an intervener that the FPTP system is constitutional.

Read the decision here: https://coadecisions.ontariocourts.ca/coa/coa/en/item/23512/index.do

Justice Huscroft, writing for the majority, endorsed the CCF’s arguments about the primacy of text in constitutional interpretation, holding at paragraph 46 that: “the importance of constitutional text cannot be overstated.”

“Canadians did not adopt a generic charter of rights,” Huscroft continued. “We adopted a very specific charter of rights: the Canadian Charter of Rights and Freedoms, which establishes as supreme law the specific rights and freedoms it enumerates and so enshrine,” he added. “The text of the Charter and the constitutional settlement it effects necessarily structure and delimit the scope of purposive interpretation.”

“The Court of Appeal of Ontario was right to dismiss this constitutional challenge to Canada’s voting system, which Canada has had since Confederation,” said CCF Litigation Director Christine Van Geyn. “While small political parties may fare poorly in Canada, and may win few or no seats, the court correctly found that this is a political complaint and not a Charter infringement.”

“The claim was brought by activists who prefer a different system in which they believe they will perform better. But the court was correct to find that the poor performance of a small political party is not a claim for constitutional redress,” continued Van Geyn. “There is nothing in either the Charter or the Constitution Act, 1867, that suggests either directly or indirectly that the first-past-the-post system is unconstitutional. The voting right provisions of the Charter are neutral as to form for voting, and a system of constituency-based representation and a House of Commons is referred to in multiple sections of the Constitution Act, 1867. This is the voting system Canada has had since Confederation, and it is absurd and silly to suggest it is now somehow unconstitutional.”

As an intervener, the CCF made arguments about the principles of interpretive harmony, and that the FPTP system remains constitutional, as it has been since Confederation, absent any clear intent to the contrary.

Read the CCF’s intervener factum here: https://theccf.ca/wp-content/uploads/2024.08.30-Factum-of-the-Intervener-CCF.pdf

The CCF is represented in this case by Asher Honickman and Kristopher Kinsinger of Jordan Honickman Barristers.