The Ontario Superior Court of Justice said the Canadian Constitution Foundation’s (CCF) arguments the first-past-the-post (FPTP) voting system is constitutional are valid. “Canada’s system of FPTP voting is not perfect — no electoral system is,” said CCF Litigation Director Christine Van Geyn in a press release. “But the system cannot be ousted by the Charter through vague inference or implication.” Van Geyn said she was pleased with the result. She added it “is up to Parliament to decide if the system should be changed.”In the decision in Fair Voting BC vs. Attorney General, Ontario Superior Court Justice Ed Morgan relied on arguments the CCF put forward as an intervenor that FPTP is supported by Section 37 and 52 of the Canadian Constitution and the Charter of Rights and Freedoms cannot interfere with these provisions. FPTP is the system of electing one MP in each geographic constituency rather than using proportional representation by allocating MPs to the House of Commons through the total share of votes parties get nationwide or within a riding. While Fair Voting BC favoured proportional representation but had been unable to convince Parliament to change the system, it applied to court for a declaration the FPTP provisions of the Canada Elections Act (CEA) are unconstitutional. Fair Voting BC made two unsuccessful arguments. It argued the CEA violated voting rights guaranteed under the Charter of Rights and Freedoms, because people who vote for smaller parties see their votes wasted more often under FPTP. It said it violates equality rights because women and non-white people are more likely to vote for smaller parties. Because the Canadian Constitution is not a living tree capable of growth, Morgan rejected the notion it has to be read in a broad, progressive manner prohibiting FPTP. “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,” said Morgan. “The metaphor of the living tree is a potent one in Canadian jurisprudence, but it has always been constrained by its ‘natural limits.’” He relied on the CCF’s arguments about Section 51(2) of the Constitution, which was the amendment made in 1998 to create Nunavut. Since parts of the constitution cannot interfere with each other, he acknowledged the CCF’s arguments it is entrenched in it. Since these electoral principles are entrenched in it and have never been repealed, he said they cannot be challenged. The Supreme Court of Canada has said on numerous occasions one part of the constitution cannot interfere with another. The CCF was represented in its intervention by Jordan Honickman Barristers lawyers Kristopher Kinsinger and Asher Honickman. Kinsinger said he is pleased Morgan rejected the argument judges can strike out or interpret away constitutional principles which the Supreme Court has ruled 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,” said Kinsinger. The CCF had been granted intervenor status in the case challenging FPTP in August. READ MORE: Civil liberties group to defend Canada’s first-past-the-post electoral system“This challenge is being brought by advocacy groups attempting to use the courts to achieve what the legislature has declined to do,” said 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 Ontario Superior Court of Justice said the Canadian Constitution Foundation’s (CCF) arguments the first-past-the-post (FPTP) voting system is constitutional are valid. “Canada’s system of FPTP voting is not perfect — no electoral system is,” said CCF Litigation Director Christine Van Geyn in a press release. “But the system cannot be ousted by the Charter through vague inference or implication.” Van Geyn said she was pleased with the result. She added it “is up to Parliament to decide if the system should be changed.”In the decision in Fair Voting BC vs. Attorney General, Ontario Superior Court Justice Ed Morgan relied on arguments the CCF put forward as an intervenor that FPTP is supported by Section 37 and 52 of the Canadian Constitution and the Charter of Rights and Freedoms cannot interfere with these provisions. FPTP is the system of electing one MP in each geographic constituency rather than using proportional representation by allocating MPs to the House of Commons through the total share of votes parties get nationwide or within a riding. While Fair Voting BC favoured proportional representation but had been unable to convince Parliament to change the system, it applied to court for a declaration the FPTP provisions of the Canada Elections Act (CEA) are unconstitutional. Fair Voting BC made two unsuccessful arguments. It argued the CEA violated voting rights guaranteed under the Charter of Rights and Freedoms, because people who vote for smaller parties see their votes wasted more often under FPTP. It said it violates equality rights because women and non-white people are more likely to vote for smaller parties. Because the Canadian Constitution is not a living tree capable of growth, Morgan rejected the notion it has to be read in a broad, progressive manner prohibiting FPTP. “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,” said Morgan. “The metaphor of the living tree is a potent one in Canadian jurisprudence, but it has always been constrained by its ‘natural limits.’” He relied on the CCF’s arguments about Section 51(2) of the Constitution, which was the amendment made in 1998 to create Nunavut. Since parts of the constitution cannot interfere with each other, he acknowledged the CCF’s arguments it is entrenched in it. Since these electoral principles are entrenched in it and have never been repealed, he said they cannot be challenged. The Supreme Court of Canada has said on numerous occasions one part of the constitution cannot interfere with another. The CCF was represented in its intervention by Jordan Honickman Barristers lawyers Kristopher Kinsinger and Asher Honickman. Kinsinger said he is pleased Morgan rejected the argument judges can strike out or interpret away constitutional principles which the Supreme Court has ruled 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,” said Kinsinger. The CCF had been granted intervenor status in the case challenging FPTP in August. READ MORE: Civil liberties group to defend Canada’s first-past-the-post electoral system“This challenge is being brought by advocacy groups attempting to use the courts to achieve what the legislature has declined to do,” said 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.”
