Democracy in the 21st Century: A Charter Challenge to Force Electoral Reform
MacIvor, Heather, Canadian Parliamentary Review
Despite their intrinsically political nature, election laws which infringe the Charter are as susceptible to court review and remedy as any other type of statute. Recent events in several provinces and in Ottawa indicate that the executive and legislative branches of government are reluctant to proceed with meaningful electoral reform. The time has come for advocates of change to take their chances with the judicial branch.
The most effective attack on the Single Member Plurality (SMP) system would be to challenge sections 68(1) and 313(1) of the Canada Election Act. Section 68(1) enshrines the single-member aspect of our electoral system, which is reinforced by the requirement in s.313(1) that only one candidate can be elected in a given constituency. The latter section also prescribes the plurality formula for determining the winner. Because these are the two defining characteristics of SMP, those sections are the logical targets of a Charter challenge.
The strongest legal argument is that SMP infringes the guarantee of democratic rights in s.3 of the Charter. The Supreme Court of Canada has identified two purposes of the right to vote: (a) the right of each citizen to "effective representation" in the legislature, and (b) "the right of each citizen to play a meaningful role in the electoral process".
The guarantee of "effective representation" means the right to have "a voice in the deliberations of government" and "the right to bring one's grievances and concerns to the attention of one's government representative"-in other words, to have an elected "ombudsman" responsible for assisting constituents in their dealings with the federal government.
"Effective representation" entails "relative parity of voting power": "A system which dilutes one citizen's vote unduly as compared with another citizen's vote runs the risk of providing inadequate representation to the citizen whose vote is diluted." Where the unequal weighting of votes is not required to ensure better government, "dilution of one citizen's vote as compared with another's should not be countenanced."
The guarantee of "a meaningful role in the selection of elected representatives" benefits both the individual citizen and the electorate as a whole. The process of collectively choosing the legislature "enhance[s] the quality of democracy in this country" and ensures that public policy" is sensitive to the needs and interests of a broad range of citizens." This purpose also animates the second right guaranteed by s.3: "The right to run for office provides each citizen with the opportunity to present certain ideas and opinions to the electorate as a viable policy option; the right to vote provides each citizen with the opportunity to express support for the ideas and opinions that a particular candidate endorses."
The contextual approach explains why the guarantees in s.3, which refer only to individual voters and candidates, have also been applied to political parties. Parties provide the context within which most Canadians exercise their rights to vote and to run for public office. Consequently, a successful Charter challenge to SMP must go beyond the infringement of individual rights, and target the ways in which our electoral system benefits some political parties while harming others.
We know that SMP benefits larger and more regionally-concentrated parties at the expense of smaller parties and those with regionally-dispersed support. In so doing, it infrinqes the rights of individual voters in three ways:
* It violates the guarantee of "effective representation" by denying the supporters of some parties "a voice in the deliberations of government".
* It violates the requirement of "relative voter parity". For example, "In the 1993 election, it took 34.36 times as many PC voters as Liberal voters to elect a candidate."
* It deters some voters from casting ballots for their preferred party or candidate, because they know that their vote will not affect the outcome of the election. …