Canada’s Electoral System Upheld as Constitutional in Fair Voting BC v Canada (Attorney General)

The Canadian electoral system survived a constitutional challenge at the Ontario Court of Appeal, with the Court unanimously holding that the Single Member Plurality electoral system (“SMP” or “first-past-the-post”) does not violate voting or equality rights under the Canadian Charter of Rights and Freedoms.[1] This article provides a quick breakdown of the challenge and the Court’s reasoning in response to it.

Background

Since Confederation in 1867, Canada has used an SMP system to elect members of Parliament.[2] Under this system, the candidate who receives the most votes in each riding wins that seat, and the political party that wins the most ridings is invited to form a government.[3] Because multiple parties and independent candidates run in each riding, the winning candidate may win through a plurality of votes and a party that has the largest percentage of national votes may not form government.[4]

Many other countries use different electoral systems, including forms of proportional representation (“PR”).[5] PR systems aim to align seat counts with the overall share of votes throughout the country, so that parties with strong but widely dispersed support are represented in the lawmaking process regardless of their ability to win individual ridings.[6] Though Liberal Party leader (and future Prime Minister) Justin Trudeau campaigned on reforming Canada’s electoral system in 2015, he ultimately backed away from this pledge, and the federal SMP system remains unchanged.[7]

The appellants in the Fair Voting case, Fair Voting BC and Springtide Collective for Democratic Society, challenged sections 2(1), 24(1), and 313 of the Canada Elections Act, which regulate electoral districts and establish SMP representation.[8] They argued that Canada’s SMP system enables large political parties and a small number of voters to “exercise undue influence … on … the political course of the nation.”[9] Arguing that the SMP system violates the right to vote under section 3 of the Charter and the right to equality under section 15(1), they described the Canadian electoral system as “a relic of days more barbarous than ours, where representation was restricted to propertied men and stands against Canada’s diverse pluralistic society with distinct minorities and voices.”[10]

Majority Decision

The Court dismissed the appeal in direct terms, finding that the appellants’ arguments were, “in essence, a repackaging of failed political arguments as constitutional rights violations.”[11] In coming to this conclusion, the Court found that the supporting evidence presented at trial, which was largely social science research, was composed of “highly contestable policy arguments” over which there is room for “reasonable disagreement.”[12] The Court further stated that “[a]cademic views are not entitled, a priori, to priority over anyone else’s.”[13]

Decision on Section 3

Looking at Supreme Court jurisprudence on section 3, the Court found three broad categories of voting rights: 1) the right to participate in an election by voting; 2) the right to effective representation; and 3) the right to meaningful participation in the electoral process.[14] Effective representation is a freestanding right that entitles individuals to be represented in government through their elected representatives,[15] whereas the right to meaningful participation is a participatory right to “play a meaningful role in the electoral process.”[16] The latter right involves voters being reasonably informed and political candidates having a reasonable opportunity to state their positions.[17] It is not a right for voters to “play an unlimited role in the electoral process.”[18]

The appellants argued that the SMP system violates the latter two rights — to effective representation and meaningful participation — because 1) a large number of voters are represented by a Member of Parliament they did not vote for; 2) small parties are disadvantaged through vote value and voter engagement, it violates the principle of majority rule; 4) it reduces voter engagement for small parties; and 5) it favours voters in competitive ridings over those in “safe” ones.[19]

The Court rejected the appellants’ arguments, stating that the claim that small parties are disadvantaged is a political complaint rather than a constitutional one, and that “the failure of a political party [cannot] establish a claim for constitutional redress.”[20] Guided by the principle that purposive Charter interpretation must remain anchored to constitutional text and cannot “overshoot the actual purpose of the right,” the Court held that “the right to vote is a right to vote pursuant to the electoral system in operation ­— whatever that system is, and regardless of the electoral outcomes that may obtain.”[21] The Court also noted that all decisions finding section 3 violations had concerned either outright prohibitions on voting, or regulations of the pre-election and campaign periods; they did not concern the design of the electoral system itself.[22]

Ultimately, with section 3 extending to the right to participate in a democratic electoral process by casting a ballot, “political outcomes following elections do not violate the right to vote.”[23] According to the Court, voters who do not have their preferred candidate elected do not face a real sense of “hardship,” as Members of Parliament are responsible to their entire constituencies, including those who did not vote for them.[24]

Decision on Section 15(1)

In their argument for section 15(1), the appellants alleged that the SMP system causes the underrepresentation of women and racial minorities in Parliament, that it discriminates against supporters of small parties, and that political affiliation constituted a new analogous ground of discrimination.[25]

Responding to these claims, the Court found that causation, where the impugned law must “creat[e] or contribut[e] to a disproportionate impact on the basis of a protected ground,” could not be established for the adverse impact discrimination analysis.[26] It stated that, even accepting that PR systems will result in more women and racial minorities being elected, there is no support for the claim that the SMP system itself causes a disproportionate impact on these groups that rises to the level of discrimination under section 15.[27]

The Court also rejected political affiliation as an analogous ground under section 15(1) as political affiliation is not “a matter of personhood” and could be changed.[28]

Finally, the Court took particular issue with the application judge analyzing politics and policy. It stated that making political judgments that “Canadian society is systemically sexist and racist” and suggestions that “a more diverse Parliament would be a better lawmaker” are not matters to be discussed by a judge assessing a constitutional challenge.[29]

Conclusion

Fair Voting provides a robust rebuke of the design of Canada’s electoral system being a matter for courts to decide. It confirms that the design of the electoral system is a matter for Parliament, not the courts, and that neither voting rights nor equality rights impose any constitutional requirement on the form that elections must take. In essence, this boils down to the idea that under the current system, “people are entitled to vote for whomsoever they want, for any reason they want.” This, the Court says, “is the very essence of the freedom that lies at the heart of the right to vote.”[30]

***

Anjali Choudhary is a graduate from the University of Alberta Faculty of Law and a staff writer for Seven/Fifty

[1] Fair Voting BC v Canada (Attorney General), 2025 ONCA 581 [Fair Voting].

[2] Ibid at para 1.

[3] Ibid at paras 1–2.

[4] Ibid at paras 2, 15.

[5] Ibid at para 3.

[6] Ibid.

[7] Darren Major, “Trudeau says Abandoning Electoral Reform is his Biggest Regret. Here's how it Happened”, CBC News (9 January 2025), online: <cbc.ca/news/politics/trudeau-electoral-reform-biggest-regret-1.7426407> [perma.cc/WUZ8-2MPA].

[8] Fair Voting, supra note 1 at para 13; Canada Elections Act, SC 2000, c 9, ss 2(1), 24(1), 313.

[9] Fair Voting, supra note 1 at para 37.

[10] Ibid at para 6.

[11] Ibid at para 9.

[12] Ibid at paras 9, 20.

[13] Ibid at para 20.

[14] Ibid at paras 27–28.

[15] Ibid at para 29.

[16] Ibid at para 32.

[17] Ibid at para 33.

[18] Ibid.

[19] Ibid at paras 35–36.

[20] Ibid at para 41.

[21] Ibid at paras 42, 45.

[22] Ibid at para 49.

[23] Ibid at para 54.

[24] Ibid at para 53.

[25] Ibid at para 59.

[26] Ibid at para 72.

[27] Ibid at para 86.

[28] Ibid at para 94.

[29] Ibid at paras 88-90.

[30] Ibid at para 90.