Wednesday, 16 November 2011

Charter Confusion II: Clarifying Simple Constitutional Facts

Let's clarify some confusion that seems to have arisen regarding my previous post, shall we? First, however, I will once again state that something may be entirely undemocratic yet entirely constitutional. They are not antithetical. As long as a power - say, to decide the composition and selection of members of the House of Commons - is entrenched as a constitutional provision, no amount of Charter challenges can supplant it.

I suggested that the courts was the wrong venue for deciding questions about the electoral system. A Charter challenge is doomed to fail with absolute certainty. The court will not hear the case. There is no grounds on which it could be accepted. This rests solely on the provision that the electoral system is being challenged on: section 15. Section 15 - the equality provision - is quite explicit in its wording. It states:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The First-Past-the-Post (FPTP) electoral system does not violate this. One reason is because, quite simply, the provision is about treatment under the law. Electoral systems - while they may be codified in statute - are not laws binding individuals. The electoral system does not discriminate on the basis of identifiable group. It may favour some parties over others, but this is an outcome devoid of discrimination. There is absolutely no Charter right to be represented by the individual or party of your choice. Here there is no discrimination because no distinctions of any kind are made between voters. They are treated the same and afforded a single vote.

Most importantly, in order to invoke section 15, there must be clear evidence of discrimination. Without it there is no recourse to this aspect of the Charter. The court typically applies a test - the law test  (Law v. Canada)- in order to evaluate the context. There must be, among other factors, an existing disadvantage and a correlation between claims and needs. Certainly voting for the Liberals or Greens could not be labelled an 'existing disadvantage'.

Attacking the electoral system on this grounds grossly misunderstands the nature and demands of the concept of discrimination. The first question that must be asked under s15 is, quite obviously, 'who is being discriminated against'. In this case that answer cannot be answered. There can be no identifiable victim. What is more, since electoral preference is not immutable, it is impossible to say with certainty that it targets a certain group with certain predispositions. If you cannot identify the victim you cannot stand on an equality argument. It is not enough to say 'outcomes are distorted'. Certainly this is true, but interpreting this as discrimination is a bit rich. Frankly, anyone who assumes this challenge has a Liberals chance in Alberta is devoid of common sense or sufficient knowledge of the Courts and the Charter itself.

This was the point of the previous blog, to lay out, albeit briefly, why challenging the electoral system this way is doomed to failure. I was entirely unconcerned with the positive or negative aspects of the system itself. Yes, the system often distorts outcomes. The share of popular vote to seats is often disproportionate. Part of the problem is not the system but in interpretation. Canadian elections are local. We vote by simple plurality to chose a local representative. These MPs collectively form a Parliament and chose a government amongst themselves. The party system, of course, simplifies this process, cementing loyalties. The problem, however, is that a local phenomenon is compared to aggregate national numbers. This a bit akin to comparing the proverbial apples and oranges. The distortion is amplified because the measures are not apt. Certainly a mixed system with direct representatives and an indirect party list based purely upon popular vote would ameliorate this to some degree, but this is hardly a debate I want to wander in to.

In the end, the debate about electoral systems comes down to a normative and political debate about what democracy is about. Those favouring reform see 'wasted votes' as a result of the system, one that punishes smaller parties. The counter could be made that voting is about making a choice and that not everyone can win. Either system, in fact, treats voters exactly the same. Whether FPTP or Mixed-Member Plurality, every elector has a single vote and the same prospects. Both depend upon collective decision making, just to varying degrees. There is no disputing that voters are treated equal. A vote is a vote. That a ballot may be cast for a winning candidate does not mystically imbue that ballot with an extra significance or weight.

The correct battle ground for this debate is the political arena, not the legislature. There is absolutely no constitutional recourse to cling to in an attempt to bring in voting reform through the back door. The Constitution is largely silent on electoral politics. The size and composition of the legislature and the means by which members are selected is solely within the hands of the legislatures themselves. It may not be democratic, but it is constitutionally legitimate. It makes absolutely not sense to argue one constitutional principle against another. Like the case of Catholic schools in Ontario, nothing in the Charter abrogates existing components elsewhere in the Constitution Act. The bottom line, you cannot raise a Charter challenge - a move that claims something is not constitutional - against an existing provision of the constitution itself. Section 41 is abundantly clear: "Until the Parliament of Canada otherwise provides", existing laws remain in place pertaining to elections. It's a constitutional principle, it trumps the Charter and it's immutable without constitutional amendment.

Voters in British Columbia and Ontario have put the question to a vote and rejected soundly the cause of electoral reform. Certainly the conditions around the vote may not have been ideal, but nevertheless those numbers, for the time being, are legitimate. On such matters a vote must be a simple majority (or a clearly defined threshold, say 60%). The number beyond 50+1 is entirely arbitrary and no matter the outcome be met with argument from both sides. If 60+1 as required, those in favour would decry it as undemocratic. Democracy ultimately requires a choice. You cannot have a proportional vote in a referendum. You cannot choose one method of voting while other people use another. That would be a prime example of inequality.

Finally, there is an astounding irony in attempting to alter the electoral system through the courts. Even if the court were to overturn the first-past-the-post, the new system would have to be put to consultation. Again, we run into the problem of threshold? What level of popular support would be required to implement a new system? The first irony is that it would require a simple or enhanced majority to implement, a system that is decried by reformers. Second, there is an even larger irony in sidestepping democratic politics, where such measures have already been soundly defeated, in order to make an end run around the process by resorting to an unelected and unaccountable judiciary. Why, if FPTP is so abhorred, would the verdict of between five and nine learned elites be democratically legitimate? These contradictions need to be addressed.

Again, the point of the previous blog - among other points related to the occupy movement - was simply to clarify matters relating in general to Charter challenges. The judicial reality - and this is solidly backed up the the historical record of jurisprudence - is that a challenge to the electoral system is doomed to fail without question. The court, even on its most generous day, would not hear this case. It's clear with only a cursory glance that there is no ground here. It merely highlights the judicial and constitutional illiteracy of those who see the courts as a quick end run around a long political slog. It doesn't help too that the Charter is so often seen as existing apart from the Constitution Act and not something embedded within it that cannot supplant its existing provisions. [Perhaps this vision is promulgated by the fact that the document is itself printed separately from the rest of the constitution when displayed or discussed]. Only Parliament has the authority here, a fact entrenched in the constitution and not subject to the Charter. This is dictated by the supreme law of the land. Unless Parliament decides it's time for a change, no court challenge, no matter how wrapped in the language of democracy or equality it may be, has even the slightest chance of forcing change.

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