The end of the 2023-2026 Charter Challenge -- Judge rules against constitutional requirement for fair voting, and Supreme Court refuses to hear appeal
- Tom Monto
- 5 days ago
- 4 min read
Supreme Court of Canada declined to hear appeal of judge's ruling made in 2025 that fair voting (effective voting and Proportional Representation) was not a constitutional right.
But, according to the activists of the Springtide Canada and BC Fair Vote, there are some heartening take-aways:
What We Accomplished Together
Before we consider what comes next, let’s reflect on what we accomplished together.
This challenge was historic. We asked Canadian courts to seriously consider whether FPTP deprives millions of voters of effective representation, reduces the ability of these voters to meaningfully participate in elections, and reduces the opportunities for women and minorities to run for and be elected to Parliament, violating their Charter rights.
We expressly contrasted FPTP with various examples of proportional representation systems found in most other democratic countries. We assembled a large and comprehensive record of expert evidence and a set of affidavits from representatives of communities whose votes are systematically and routinely devalued.
We put together rigorous legal arguments making the case that half the voters under FPTP – voters of all political stripes – are not effectively represented and experience less meaningful participation in elections than their fellow citizens, for no good reason that bears scrutiny.
The Court Accepted Many of Our Claims
Ultimately, the court found that we had done an "admirable job" demonstrating that proportional representation systems is a fair and effective electoral methodology that privileges the fair and even representation and democratic satisfaction of voters.
The court further confirmed some of the significant unfairness created by FPTP, in particular accepting that FPTP:
reduces the voice in government of voters who have no voting link to their MP, resulting in their uneven and unfair representation;
rewards voters for the largest parties in each region at the expense of voters for smaller parties;
results in the frequent exercise of majority ruling power by parties with minority support, which can reduce Parliament’s democratic legitimacy;
reduces turnout and voter satisfaction, particularly amongst the voters whose voices it suppresses; and
reduces the incentives of parties to nominate women as candidates for elections.
These clear findings, and the extensive body of evidence that underpins them, are now permanently part of the legal and public record.
Furthermore, many of the myths that reform opponents use in public debate were shown to be wrong, on the record, and were directly dismissed by the court. That matters – and it will continue to matter.
What the Courts Left Unresolved
Despite the courts' recognition that FPTP has many problems, their decisions that these problems do not amount to an infringement on our right to effective representation, meaningful participation and equal treatment were unsatisfying.
In our view, the courts declined to engage fully with the deeper constitutional questions at the heart of our case – most particularly:
whether voters who are not politically aligned with their MP are less effectively represented in Parliament and government than those who have an MP for whom they voted;
why FPTP's structurally harmful effects on voter participation and candidate diversity should be tolerated in a country that is officially committed to broad equality; and
why the right to equal treatment should not apply equally to groups defined by their political identity as to those defined by religion or age, a glaring gap in our Charter that is explicitly included in most international human rights instruments.
The Path Forward
We will continue to seek to contribute to, and potentially initiate, future cases aimed at obtaining satisfactory answers to all these questions and push the court towards a more purposive view of our democratic rights.
For example, if Alberta tries to force through gerrymandered districts this year, this could represent another opportunity to engage.
And former Vancouver mayor Kennedy Stewart has announced his plans to lead a challenge of Vancouver’s at-large Block Voting system – we will certainly consider partnering on that. [hopefully the at-large aspect is not what is criticized but what is is the fact that a minority group can elect members in all the seats, and leave no representation for the other groups.]
But the courtroom is not the only path forward. Electoral reform remains a live political question in Canada. Provinces have the power to change their own electoral systems, and the movement for proportional representation continues to build momentum across the country. Although BC Premier David Eby has thrown cold water on hopes for change there, a large network of civil society organizations is coming together to push for further changes to our electoral regime.
And the new NDP leader, Avi Lewis, as well as all other NDP leadership contenders, were adamant that federal voting reform would be a key condition of any future governing accord.
Every election that produces a distorted result adds new urgency, new voices, and more pressure to our goal of full democratic equality for all citizens, and the legal arguments we have developed, refined, and placed on the public record will be a lasting resource for future advocates, legislators, and perhaps future courts.
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