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Elections - Charter. Fair Voting BC v. Canada (Attorney General)
In Fair Voting BC v. Canada (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal considered the test for intervention 'as a friend of the court', here in a hopeful Charter s.3/15 case challenging the 'first-past-the-post' [aka 'single member plurality' ('SMP')] electoral system:[2] The appellants challenged various provisions of the Canada Elections Act, S.C. 2000, c.9 (“CEA”) as inconsistent with both ss. 3 and 15(1) of the Charter of Rights and Freedoms. The application was dismissed and the applicants have appealed to this court. The appeal has been listed for hearing on November 5, 2024.
[3] The argument advanced in the Superior Court was, in brief, that: (1) SMP infringes s. 3’s right to vote on the basis that it does not provide either the “effective representation” or “meaningful participation” that the Supreme Court has stated is entailed by s. 3: Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912; and (2) SMP infringes s. 15(1)’s anti-discrimination provision in that it causes small political parties and their constituents to be underrepresented in Parliament, resulting in discrimination on the basis of the analogous ground of “political affiliation”, and that it results in the underrepresentation of women and racial minorities in Parliament.
A. The scope of the appeal
[4] With respect to s. 3 of the Charter, the appellants will argue on appeal that the application judge misapprehended the concepts of “effective representation” and “meaningful participation”; wrongly imported s. 1 considerations into the determination of whether s. 3 had been infringed; and misapprehended the applicants’ submission as seeking the imposition of a particular electoral system as a remedy.
[5] Additionally, the appellants will argue that the application judge erred in several respects in concluding that SMP does not infringe s. 15(1) rights. The proposed argument claims the application judge erred in failing to find a causal nexus between SMP and lower levels of representation of women and racial minorities in Parliament. The appellants will also argue in the alternative that political affiliation is analogous to the grounds of discrimination enumerated in s. 15(1), and that SMP wrongfully discriminates against persons who would vote for small parties.
[6] With respect to the Constitution Act, 1867, the appellants will argue that the application judge erred in finding that the Constitution Act, 1867 specifically calls for SMP.
[7] Given the application judge’s findings that the impugned sections of the CEA did not limit anyone’s Charter rights, he did not engage in a s. 1 analysis to determine whether the limits imposed were justified. The appellants will argue on appeal that the provisions fail the minimal impairment branch of the Oakes test because the record establishes that other electoral systems are available that do not unreasonably limit rights.
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