Unconstitutional Democracy? A Charter Challenge to Canada's Electoral System

Trevor Knight

ABSTRACT

The electoral system structures the conversion of citizens' votes into seats in the legislature. Many countries' electoral systems are based on proportional representation (PR). In these countries, the system is designed to achieve proportionality between the percentage of votes that a party receives and the percentage of seats that the party wins in the legislature. In contrast, Canada has a single member plurality (SMP) electoral system. In SMP systems, the winner of the most votes in each geographically defined constituency is elected to the legislature. The legislatures created by SMP systems therefore represent a distorted picture of the actual electoral preferences of the populace. Marginalized groups, including women, Aboriginal people, and visible minorities, tend to have poorer representation in the legislatures of countries with SMP systems than in those of countries with PR systems. The SMP system also exaggerates and compounds regionalism in Canada by misrepresenting the true electoral strength of political parties within various provinces. This paper argues that a challenge to the constitutionality of the SMP electoral system could be brought under s. 3 of the Canadian Charter of Rights and Freedoms. Such a challenge would be based on the s. 3 jurisprudence developed in electoral districting cases in Canada. These cases have found that s. 3 guarantees the right to effective representation. Effective representation is primarily provided by a relative parity of voting power, but this right may be restricted in order to support other values--especially the representation of diversity. However, the SMP system does not provide parity of voting power and, in fact, detracts from the representation of many social and cultural groups in our society. It is argued that the constitutionality of the electoral system is an inappropriate area for judicial deference to the legislature, given the incentive that legislators have to skew the system to their advantage. It is submitted that a court should find the electoral system to be unconstitutional, but suspend any further action to allow the legislature time to create a new, constitutionally valid electoral system through study and democratic debate.

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Citation: (1999) 57(1) U.T. Fac. L. Rev. 1.
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