TORONTO – The Canadian Constitution Foundation (CCF) is pleased that an Ontario court has agreed with the CCF’s arguments in a decision that finds the first-past-the-post system of voting is constitutional.
In his decision in Fair Voting BC v Attorney General, 2023 ONSC 6516, Justice Morgan of the Ontario Superior Court of Justice relied on arguments that the CCF put forward as an intervener that the first-past-the-post system is supported by sections 37 to 52 of the Constitution Act, 1867, and that the Charter of Rights and Freedoms cannot abrogate those provisions.
First-past-the-post is the system of electing one Member of Parliament in each geographically-based constituency, rather than allocating members to the House of Commons in proportion with the total share of votes parties get nationwide or within a riding, which is known as proportional representation. The applicant advocacy groups favour proportional representation but had been unable to convince Parliament to change the system, so they applied to court for a declaration that the first-past-the-post provisions of the Canada Elections Act (CEA) are unconstitutional.
The applicants made two unsuccessful arguments. They argued the CEA violated section 3 of the Charter of Rights and Freedoms, which gives every citizen the right to vote, because those who vote for smaller parties see their votes “wasted” more often in the first-past-the-post system. They also argued that the first-past-the-post system violates the section 15(1) guarantee of equality because women and racial minorities are more likely to vote for smaller parties.
Justice Morgan rejected the notion that because the Constitution is a “living tree” capable of growth, that it must be read in a broad and progressive manner that prohibits first-past-the-post.
“To be clear, the Applicants cannot, under the guise of a “living tree” interpretation of the Constitution, strike out or interpret away constitutional principles which the Supreme Court has said remain valid,” Justice Morgan wrote.
“The metaphor of the living tree is a potent one in Canadian jurisprudence, but it has always been constrained by its “natural limits”,” he added.
Justice Morgan relied on the CCF’s argument that section 51(2) of the Constitution Act, 1867, which was the amendment made in 1998 to create Nunavut.
Justice Morgan also endorsed the CCF’s arguments that first-past-the-post is entrenched in the Constitution Act, 1867 and cannot be challenged under the Charter because one part of the constitution cannot abrogate another.
“Counsel for the Intervener, Canadian Constitutional Foundation (“CCF”) adds to this that since these electoral principles are entrenched in the Constitution Act, 1867 and have never been repealed, they cannot be challenged under the Charter or Constitution Act, 1982,” Justice Morgan wrote.
“As the Supreme Court has put it on a number of occasions, “One part of the Constitution cannot abrogate another part of the Constitution…”,” Justice Morgan added.
The Canadian Constitution Foundation was represented in its intervention by Asher Honickman and Kristopher Kinsinger of Jordan Honickman Barristers.
Kinsinger said he is pleased that Justice Morgan rejected the argument that judges can “strike out or interpret away constitutional principles which the Supreme Court has said remain valid” using the “living tree doctrine.”
“Justice Morgan recognized that the Charter is not an empty vessel to be filled with whatever meaning we might wish from time to time,” Kinsinger said.
CCF Litigation Director Christine Van Geyn was also pleased with the result.
“Canada’s system of FPTP voting is not perfect — no electoral system is,” she said.
“But the system cannot be ousted by the charter through vague inference or implication,” Van Geyn added. “It is up to Parliament to decide if the system should be changed.”