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
- Apr 6
- 7 min read
Updated: Apr 23
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 aldermanic 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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The Charter Challenge's lawyer, Nicolas Rouleau, intervened in a 2026 court case concerning districting in Quebec and the right to have fair and equal representation:
"Although the Supreme Court of Canada (SCC) declined to hear our Charter Challenge, our lawyer, Nicolas Rouleau, will nonetheless be presenting some of our arguments there this week in a different case we told you about a few weeks ago - namely, Attorney General of Québec v Lalande.
This case started when the Québec government (supported by all parties) suspended the work of their electoral boundary commission in 2024 after a preliminary report recommended removing two ridings in areas of the province experiencing population declines in favour of increasing the number of ridings in growing areas of the province. A group of municipal officials (led by Lalande) argued that failing to adjust the boundaries to reflect population changes would breach their constituents' right to effective representation because they would be under-represented.
The Canadian Civil Liberties Association intervened in support of Lalande and the other officials to highlight "the structural conflict of interest ... in which legislators find themselves when enacting election laws. Because of the importance of democratic rights in our society and the risk of partisan self-dealing, courts must rigorously scrutinize election legislation for Charter compliance, without showing deference to the legislature."
The Superior Court initially dismissed the case, but it was upheld on appeal. Now the SCC will hear it on Wednesday.
Our Intervention
Springtide and Fair Voting BC were accepted as interveners in the case. We submitted our factum (written arguments) about a week ago, and our lawyer, Nicolas Rouleau, will appear before the Supreme Court on Wednesday.
In our factum, we called on the Court to "confirm the importance of elected representatives’ “legislative role” and the important function of independent electoral boundaries commissions in safeguarding the right to effective representation and [to] clarify the relationship between [sections] 1 and 3 of the Charter".
Our first argument is important because much of the existing argumentation and reasoning in the case addresses the "ombudsperson" role of MNAs, but, as we point out, "the heart of the democratic right to effective representation is that it allows for the representation of voters in the legislature through their representative’s legislative role." In our view, the courts in the Charter Challenge did not sufficiently engage in this distinction, so we hope to have the SCC emphasize this point in this case.
[I assume this means the right of a majority of voters (those who vote anyway) to have a government (majority in the legislative chamber) that represents them and passes laws tht they agree with. Because elected MLAs and MPs are not only conduits from the constituent to the government but are also legislators who pass the laws that the residents live under.]
Our second argument about the important function of independent boundaries commissions asks the court to more explicitly recognize the inherent conflict of interest that legislators are in when it comes to establishing electoral rules. Although there is little evidence that partisan interests are at play here (all parties endorsed the request), the possibility of self-dealing (especially if not explicitly argued by the government) requires the courts to closely scrutinize the government's actions and grant strong deference to the recommendations of the independent boundaries commission.
Our final argument is that the court should treat issues related to sections 3 and 1 as "analytically distinct". We argue that the court should first assess whether there is a breach of section 3 and only then consider any "trade-offs" the government might want to argue for.
In the present case, we argue that Québec improperly assumes that there would be a breach of section 3 if the commission's recommendation were implemented - the evidence shows that the commission has satisfied section 3. To succeed, the government should therefore be held to the higher standard of showing why it is appropriate to expressly grant amplified representation to some voters, which we believe it would be unlikely to be able to do."
from press release of Springtide and FVBC "Charter Challenge Lawyer Intervenes Wednesday in Québec Boundaries Commission Appeal at the Supreme Court" April 20, 2026.
My view:
Of course this envisions the equal representation of each equally-sized district has being part of democracy, which I don't think should be the main emphasis of our representative democracy.
Having an equal number of voters (those who vote anyway) represented by each elected members is more important (which is not the same thing at all as representation by population).
Even if each district has exactly the same number of population, and the same number of voters, and the same turnout in each district, if in one district a member is elected with 24 percent of the votes while in another district a member is elected with 80 percent of the vote, both of which can easily happen under FPTP, then you have unfairness, inequality and disproportional misrepresentation.
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