2011 QCCA 1634, 2011 QCCA 1634

Unofficial English Translation Daoust c. Québec (Directeur general des élections) 2011 QCCA 1634 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-019528-090 (500-17-019810-046) DATE: September 13, 2011 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. ANDRÉ ROCHON, J.A. JACQUES DUFRESNE, J.A. PATRICK DAOUST FRANÇOIS SOUCY BRIAN GIBB PIERRE VÉRONNEAU APPELLANTS – Petitioners v.

CHIEF ELECTORAL OFFICER ATTORNEY GENERAL OF QUÉBEC RESPONDENTS – Respondents and FAIR VOTE CANADA ELIZABETH MAY INTERVENERS JUDGMENT [ 1 ] THE COURT ; - Ruling on the appeal from a judgment rendered on February 26, 2009, by the Superior Court, District of Montreal (the Honorable Mr. Justice Luc Lefebvre), which dismissed the appellants’ motion for declaratory judgment; [ 2 ] For the reasons of Dufresne J.A., with which Pelletier and Rochon, JJ.A. agree; [ 3 ] DISMISSES the appeal, with costs; [ 4 ] DISMISSES the intervention, without costs. FRANÇOIS PELLETIER, J.A. ANDRÉ ROCHON, J.A. JACQUES DUFRESNE, J.A.

Mtre Julius Grey Grey & Casgrain For the appellants Mtre Lucie Fiset Chief Electoral Officer of Québec For the respondent Chief Electoral Officer Mtre Éric Dufour Mtre Manon Des Ormeaux Bernard, Roy (Justice-Québec) For the respondent Attorney General of Québec Mtre Peter Rosenthal Roach, Schwartz & Associates For the Interveners Date of hearing: February 8, 2011 REASONS OF DUFRESNE, J.A. [ 5 ] The subject is not new.

It has long been a topic of controversy, or at least of divergent opinions, here as elsewhere. [1] In fact, the one-round single-member majority voting system (also known as “ first-past-the-post” ) that prevails in Quebec, as elsewhere in Canada, occasionally creates relatively significant distortions in electoral representation. [ 6 ] Over the years, this essentially political debate has generated numerous public discussions and has resulted in proposals for electoral reform. Some would prefer a proportional system or a mixed system. However, as the evidence clearly shows, there is no perfect electoral system.

All electoral systems can be improved in order to mitigate, if not correct, the shortcomings that may sometimes appear. [ 7 ] This time, the debate has been brought to the courts. The appellants brought before the Superior Court a motion seeking to have the Québec Election Act, [2] or at least some of its provisions, declared inoperative, on the grounds that the current system of voting does not respect the principle of one citizen, one vote.

It was dismissed by the Superior Court, which found, first, that this issue is political and not judicial, and second, that no violation of the Canadian Charter of Rights and Freedoms [3] (hereinafter, the “ Canadian Charter” ) or the Charter of Human Rights and Freedoms [4] (hereinafter, the “ Quebec Charter ”) had been demonstrated.

FACTS AND PROCEEDINGS [ 8 ] The appellants, members of the Association for the Advancement of Democratic Rights , seek to reform the one-round single- member majority voting system in favour of a voting system that would promote a more accurate representation of all political parties in the National Assembly. [ 9 ] The appellants’ motion for declaratory judgment seeks to have the Election Act, or at least some of its provisions, declared inoperative. They allege, inter alia: 9.

Plaintiffs file a historical analysis of the discrepancies between the popular vote and the seat representation in Quebec, prepared by them as Exhibit P-4; there is no doubt and no dispute about the fact that a discrepancy can exist; 10. On several occasions the winning party had fewer votes than the losing party; this has happened in many jurisdictions which use a “ first past the post ” system; 11.

Milner, Jedwab and the analysis, P-4, also show that, in Quebec, the system has the effect of creating linguistic “ ghettos ” for electoral purposes which is undesirable and which diminishes the scope of equality rights and discourages “ ethnic ” voters from voting; 21. The present system in Quebec is not valid under the provisions of the Canadian and Quebec Charters and in particular under Sec. 3 and 15 (the group under

section 15 being the English speaking minority) of the Canadian Charter and Sec. 10 and 22 of the Quebec Charter ; 32.

Plaintiffs ask that the Election Act or sections 14, 15, 17, 375, 377, 378 and/or any other sections this Court may see fit be declared inoperative under such conditions and to such extent as the Court sees fit or that it be declared inoperative with respect to them ; [The text is underlined in the re-re-amended motion] [ 10 ] They claim that the Election Act , which establishes a single-winner majority voting system, is unconstitutional, because it violates the right to vote protected by s 3 of the Canadian Charter and s 22 of the Quebec Charter , and the right to equality protected by s 15 of the Canadian Charter and s 10 of the Quebec Charter . [ 11 ] It is their view that this voting system has the effect of under-representing the minorities, and specifically the English-

speaking community of Montreal’s West Island, and that it enables a majority government to be elected even if it has received fewer votes than the opposition party that has received a larger number of votes. [ 12 ] On November 9, 2010, Elizabeth May, leader of the Green Party of Canada, and Fair Vote Canada , an interest group with members in each of the Canadian provinces, whose objective is to promote the adoption of [translation] “fairer” electoral practices throughout the country, were authorized to intervene in the matter. They support the position of the appellants.

RELEVANT PROVISIONS [ 13 ] In order to allow for a better understanding of the analysis of the grounds of appeal, it is useful to review the provisions involved: Canadian Charter 3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. 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. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Quebec Charter 10.

Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap. Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right. 22.

Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him. Election Act 14. Québec shall be divided into electoral divisions delimited in such a way as to ensure that the principle of effective representation of electors is respected. Electoral divisions, numbering not fewer than 122 nor more than 125, shall be delimited taking into account the principle that the vote of each elector is of equal weight. 15.

An electoral division represents a natural community established on the basis of demographical, geographical and sociological considerations, such as the population density, the relative growth rate of the population, the accessibility, area and shape of the region, the natural local boundaries and the territories of local municipalities. 16.

The boundaries of each electoral division shall be delimited in such a way that the number of electors in a division, according to the permanent list of electors, does not deviate by more than 25% from the quotient obtained by dividing the total number of electors by the number of electoral divisions. 17. The Commission de la representation may, for exceptional reasons, depart from the rule set out in

section 16 if it considers that its application would not adequately serve the purpose of this chapter. Every such decision shall be in writing and give reasons. Notwithstanding

section 16, the Îles-de-la-Madeleine described in

Schedule I are an electoral division. […] 375. The returning officer shall declare elected the candidate who, when the addition is completed, has received the greatest number of votes. He may then communicate the results of the addition to any person requesting them. […] 377. If no application for a judicial recount of the votes is filed within the time prescribed, the returning officer shall declare elected the candidate who has received the greatest number of votes. The returning officer shall send a copy of the declaration to each candidate.

The returning officer shall without delay transmit to the Chief Electoral Officer the declaration of election and the result of the addition of the votes. 378. The returning officer shall thereafter transmit to the Chief Electoral Officer a complete return of the election proceedings. He shall also transmit to the Chief Electoral Officer all the ballot papers, the statements of votes, the lists of electors and the poll books.

JUDGMENT UNDER APPEAL [ 14 ] The trial judge dismissed the appellants’ motion for declaratory judgment. In this case, this dismissal of the motion must be understood to mean the dismissal of the substantive propositions of the appellants, and not of the proceeding brought before the Court to decide the issues enumerated therein. [ 15 ] First, the judge related the contradictory evidence before him. [ 16 ] The appellants presented three experts who advocated the institution of a new electoral system.

They explained that the existing electoral system generates significant distortions in the representation of the political parties, and does not reflect the wishes of citizens.

Expert witness Henry Milner, who outlined the main distortions that he had observed over time, in particular emphasized his preference for a proportional-type system. [ 17 ] The Attorney General of Quebec called four witnesses, including two experts, not in order to recommend one electoral system rather than another, but to review the history of the electoral system in Canada and the provinces, describe the effects of various voting methods, including the one in force in Quebec, and refer to the numerous electoral reform projects that have been discussed in Quebec over the course of the last 30 years alone.

His evidence also included a description of the various electoral systems that are now in use in the world, which can be divided into two main categories: the majority system and the proportional system. One of his experts mentioned, amongst other things, the advantages and disadvantages of each of these electoral systems, whose features or methods may vary. [ 18 ] The Chief Electoral Officer did not call any witnesses, and did not present any final arguments at trial.

However, he did submit the Preliminary Report from the Commission de la représentation électorale du Québec [Quebec Electoral Representation Commission], of which he is president, as well as the press release that he issued when this report was made public on March 12, 2008. [ 19 ] The judge, in examining the substantive issue, was of the opinion that the appellants’ procedure posed an [translation] “essentially political question with respect to which a court should not intervene”. [5] He relied on Figueroa , [6] a Supreme Court ruling, which affirms that the choice of an electoral system is a legislative prerogative. [ 20 ] He then concluded that there was no violation of either the Canadian Charter or the Quebec Charter . [ 21 ] First, the judge was of the opinion that the Election Act does not violate the right to vote enshrined in s 3 of the Canadian Charter and s 22 of the Quebec Charter .

He referred to four Supreme Court leading cases [7] that stipulate that s 3 of the Canadian Charter does not constitutionalize a particular electoral method but protects the right to effective representation (a subject that will be addressed later in these reasons). The one-round single-member majority system does not result in a lack of representation because even the smallest of parties participate in the electoral process. Moreover, according to the evidence, even in a proportional system, there are minimum levels for election, and the judge illustrated his remarks in this regard.

In this case, the appellants have exercised their right to vote, are represented in the National Assembly by a member, and participate in public life. [ 22 ] Second, the Election Act does not infringe upon the right to equality enshrined in section 15(1) of the Canadian Charter and

section 10 of the Quebec Charter . First, place of residence is not a recognized ground for discrimination pursuant to the Charters. Second, contrary to the allegations of the appellants, there is no evidence of discrimination against English-speaking residents of the West Island.

GROUNDS OF APPEAL [ 23 ] The appellants raise three grounds of appeal: • Does the dispute raise a question of a political nature that is within the exclusive purview of the legislature? • Did the judge err in concluding that the Election Act does not violate the right to vote or the right to equality enshrined by the Charters? • If so, can this violation be justified under s 1 of the Canadian Charter ? ANALYSIS [ 24 ] The appeal raises the issue of the constitutionality of the electoral system in force in Quebec.

It is a matter of determining whether the invalidity of the first-past-the-post system is an issue that can be submitted to the courts, and whether the current voting system constitutes a violation of the right to vote that is guaranteed by s 3 of the Canadian Charter and s 22 of the Quebec Charter , or the right to equality that is enshrined in s 15 of the Canadian Charter and s 10 of the Quebec Charter . [ 25 ] Although the debate this time challenges the voting system itself, the question to be resolved is not new.

It has been considered by the Supreme Court on numerous occasions. [8] [ 26 ] The appellants argue that the question raised is not political and may therefore be submitted to the courts (“ justiciable question” ). In addition to the fact that the courts may intervene in cases where Charter rights are violated, they argue that the courts enjoy a broader role that includes the capacity to intervene if they detect significant distortions in the representative nature of the National Assembly.

According to the appellants and the interveners, it is up to the courts to ensure that the voting system guarantees effective representation of the voters. In particular, they assert that some groups of people, for the purposes of their suit, the English- speaking residents of the West Island of Montreal, are under-represented in the National Assembly because of the first-past-the-post system. They perceive it to be a form of discrimination with respect to the English-speaking minority (“the group under s 15 being the English-speaking minority”), in addition to being a violation of s 3 of the Canadian Charter .

[ 27 ] They do not ask for judicial intervention with respect to the choice of voting system. They seek instead a judicial statement affirming that the Election Act is inoperative, or at least, that certain of its provisions are.

However, the parties do not contest the determinations of fact made by the trial judge. [ 28 ] As previously mentioned, the trial judge concluded that, due to its essentially political nature, the issue in dispute is not one that allows the intervention of the courts, and furthermore, that the Election Act does not contravene either the Canadian Charter or the Quebec Charter . [ 29 ] I am of the opinion of the provisions of the Election Act , which instituted the first-past-the-post electoral system in Quebec and defined its terms, can be challenged before the courts if these provisions or their effects prevent “effective representation” within the meaning of the Supreme Court rulings Ref.: Prov.

Electoral Boundaries (Sask.), [9] Figueroa, [10] and Harper. [11] Such a finding could entail a violation of the right to vote that is guaranteed by s 3 of the Canadian Charter and s 22 of the Quebec Charter . However, the evidence does not justify that conclusion, as the trial judge found in fact. In the same way, the conclusion reached by the judge with respect to the absence of discrimination and violation of the right to equality that is enshrined by s 15 of the Canadian Charter and s 10 of Quebec Charter is supported by the evidence. Therefore, the appeal must fail.

Is the question that is being asked one of a political nature that is within the exclusive purview of the legislator? [ 30 ] It is not up to the courts to become involved in the exercise of legislative power. Nevertheless, they have the jurisdiction to rule on the constitutionality of laws. Applied in this case, this signifies that it is not up to the courts, which in any case do not have the power to do so, to propose or impose a system of voting.

However, the courts can declare that the provisions of the Election Act that characterize the voting system in force are inoperative if they violate Charter rights. [ 31 ] Moreover, I add that even if the Canadian and Quebec Charters had not been adopted, the courts would not be without resources to invalidate or declare inoperative a law or certain of its provisions that may deprive a particular group of persons, such as women or people of colour, of the right to vote in a general election.

In such a context, the question would have somewhat of a constitutional scope, thus allowing the intervention of the courts. The courts could then call upon unwritten principles of the Constitution, including the rule of law, to invalidate certain provisions of a law or a regulation. [12] The courts of other countries have also considered that questions of a political nature can nevertheless be the subject of judicial debate. [13] [ 32 ] Today, this question is purely theoretical in Canada, and in Quebec, because the right to vote and the right to equality are protected rights.

That is the perspective from which a study of the question can be undertaken since the adoption of the Canadian Charter or the Quebec Charter . [ 33 ] In Figueroa , the Supreme Court was unanimous in affirming that electoral or referendum laws can be the subject of judicial review if they violate rights that are protected by the Canadian Charter .

Iacobucci J., on behalf of the majority opinion, points out: There also are difficulties associated with the government’s submission that a majority government that has aggregated preferences on a national scale is the only form of viable government in our system of democracy. Between 1882 and 1983 there were nine minority governments in the British Parliament. In Canada, there have been eight minority federal governments and a number of provincial minority governments.

The Attorney General of Canada has presented no evidence that demonstrates that such governments are less democratic than majority governments, or that they provided less effective governance than majority governments. Importantly, I do not mean to suggest that Parliament must choose an electoral system that the Court believes will result in “good” or “better” governance. The Charter aside, the choice among electoral processes is, as LeBel J. states, a political one – and not one in which the Court should involve itself.

But if Parliament interferes with the right of each citizen to play a meaningful role in that process, it must be able to point to a pressing and substantial objective that it seeks to advance.

In the absence of compelling reason to assert that a particular outcome will result in better governance, there is no basis on which to conclude that legislation that seeks to obtain that outcome advances an objective that is sufficiently pressing and substantial to warrant interfering with the right of each citizen to play a meaningful role in the electoral process. [14] [Emphasis added] [ 34 ] Similarly, LeBel J., speaking on behalf of the minority justices, writes: The right of each individual to meaningful participation sets the limit on what is permissible, but up to that limit, many options might reflect quite different, but equally acceptable, versions of democratic representation.

Within constitutional limits, the choice among these options should be viewed as a matter of political and philosophical preference in which it is not this Court’s role to intervene . The Constitution of Canada does not require a particular kind of democratic electoral system, whether it is one that emphasizes proportionality and the individual aspects of participation or one that places more emphasis on centrism and aggregation, to be frozen in place.

It does require courts to be vigilant in ensuring that the system does not unduly compromise any of the values comprised within the concept of effective representation — especially the primary value of individual participation in fair elections on a basis of relative equality. [15] [Emphasis added] [ 35 ] The question of the invalidity of the Election Act can therefore be submitted to the courts.

All in all, although the choice of an electoral system is an eminently political decision, the courts may nevertheless examine the constitutionality of the Election Act that stipulates the system of voting or its compliance with the Charters. [16] [ 36 ] The Constitution does not require a particular electoral system, [17] and therefore, the first-past-the-post method promoted by the Election Act respects the limits set by the Constitution. In short, the choice of voting systems is political, and it is up to the elected officials to debate it. Let us now consider its compliance with respect to the Charters.

Does the Election Act violate the right to vote or the right to equality? [37] The trial judge concluded that the Election Act does not contravene either s 3 of the Canadian Charter or s 22 of the QuebecCharter, and that the evidence had not established any violation of the right to equality that is enshrined in s 15 of the Canadian Charterand s 10 of the Québec Charter either. I am of the same opinion. Here is why.

The right to vote [38] The details of the Canadian electoral system, like those of the provinces, have undergone numerous modifications, some ofthem highly significant, both before 1867 and since the adoption of the Constitution Act of 1867.[18] Expert Michel Morin traced theirhistory in his report adduced at trial.[19] [39] Without entering into all of the details, today’s electoral map of Quebec, pursuant to the Election Act, is divided into electoraldivisions that are delimited not only by taking into account the principle that the vote of each elector is of equal weight,[20] but also onthe basis of demographical, geographical and sociological considerations.[21] Subject to exceptions,

Section 16 of the Election Actstipulates that there cannot be a deviation between the number of electors in each division that exceeds by 25% the quotient obtained bydividing the total number of electors by the number of electoral divisions. The candidate of a division who has received the greatestnumber of votes is elected.[22] [40] The judge noted that, in Quebec, the issue of changing the electoral system has been on the agenda for nearly 30 years, andhas been the subject of numerous studies and consultations.[23] The subject is still topical.

The evidence is particularly revealing in thisrespect. [41] In Ref.: Prov. Electoral Boundaries (Sask.), Justice McLachlin, then a puisne justice, explained that what is enshrined in s 3 ofthe Canadian Charter is not absolute parity, but effective representation: It is my conclusion that the purpose of the right to vote enshrined in s. 3 of the Charter is not equality of voting power per se, but theright to "effective representation". Ours is a representative democracy.

Each citizen is entitled to be represented in government.Representation comprehends the idea of having a voice in the deliberations of government as well as the idea of the right to bring one'sgrievances and concerns to the attention of one's government representative; as noted in Dixon v. B.C. (A.G.), (BC SC),[1989] 4 W.W.R. 393, at p. 413, elected representatives function in two roles -- legislative and what has been termed the "ombudsmanrole." What are the conditions of effective representation? The first is relative parity of voting power.

A system which dilutes one citizen's voteunduly as compared with another citizen's vote runs the risk of providing inadequate representation to the citizen whose vote is diluted.The legislative power of the citizen whose vote is diluted will be reduced, as may be access to and assistance from his or herrepresentative. The result will be uneven and unfair representation.

But parity of voting power, though of prime importance, is not the only factor to be taken into account in ensuring effectiverepresentation.[24] [Underlined in the original text] [42] In Figueroa, the Supreme Court again examined the purpose of s 3 of the Canadian Charter.

The majority judges, in anopinion by Iacobucci J., reiterated that effective representation is not a synonym for absolute parity: The Saskatchewan Reference, supra, instructs us that it may be necessary to consider a broad range of social factors prior to determiningthat a departure from absolute voter parity does, in fact, interfere with the right of each citizen to effective representation.

If the departurefrom absolute voter parity does not interfere with the right of each citizen to effective representation, it does not infringe s. 3.[25] [43] In the same decision, Iacobucci J. clarifies that s 3 guarantees the citizen the right to play a significant role in the electoralprocess, but not the election of a particular form of government: Support for the proposition that s. 3 should be understood with reference to the right of each citizen to play a meaningful role in theelectoral process, rather than the election of a particular form of government, is found in the fact that the rights of s. 3 are participatory innature.

Section 3 does not advert to the composition of Parliament subsequent to an election, but only to the right of each citizen to acertain level of participation in the electoral process. On its very face, then, the central focus of s. 3 is the right of each citizen toparticipate in the electoral process.

This signifies that the right of each citizen to participate in the political life of the country is one thatis of fundamental importance in a free and democratic society and suggests that s. 3 should be interpreted in a manner that ensures thatthis right of participation embraces a content commensurate with the importance of individual participation in the selection of electedrepresentatives in a free and democratic state.

Defining the purpose of s. 3 with reference to the right of each citizen to play a meaningfulrole in the electoral process, rather than the composition of Parliament subsequent to an election, better ensures that the right ofparticipation that s. 3 explicitly protects is not construed too narrowly.[26] [44] Therefore, in order to be valid, every electoral system must confer on the electorate or assure it of a minimal, albeitsignificant, degree of representation. The appellants maintain that the voting system in force does not satisfy this requirement.

Theynoted the deviations that may sometimes exist between the percentage of votes obtained and the number of members elected. Like theinterveners, they consider that the current voting system creates large distortions that affect the representative character of the electorate.According to the appellants, minorities, including the English-speaking population of the West Island, are under-represented in theNational Assembly.

The current system favours the election of majority governments, and works against minority parties. [45] In this respect, the appellants refer to the results of elections in certain Canadian provinces, including Quebec in 1966 and1998, where the elected government obtained a lesser number of votes than the opposition party that obtained the most votes. By way of

example, they also refer to the significant percentage of votes obtained by the Green Party in the federal elections, without any of its candidates ever being elected, and to the New Democratic Party, which has always been under-represented. The contradictory evidence is far from establishing that there is a clear trend.

In addition, although it took place after the appeal hearing, the last federal election, of whose results judicial notice is taken, seems to offer a different perspective. [ 46 ] All of which is to say that the concept of effective representation is related more to the right of participation in the electoral process than to the guarantee of an undistorted electoral result.

The contradictory evidence certainly does not allow for the conclusion that the current electoral system constantly creates such deviations to the extent that it is a source of a democratic deficit in terms of electoral representation. [ 47 ] Faced with contradictory evidence, the trial judge generally accepted the evidence presented by the respondent, the Attorney General of Québec, and more specifically, the testimony of experts Michel Morin and Leslie Seidle.

It was his task to allocate weight to the various elements of the evidence, which he did, and I do not detect any error in his assessment, much less one that is palpable and overriding. [ 48 ] Expert Leslie Seidle, asked to testify by the Attorney General of Quebec, indicated that no system is free from distortions. Each voting system has advantages and disadvantages, including the proportional system, which seems to have the favour of the appellants.

While acknowledging that a majority system can tend to underestimate the parties other than the party in power, it is, according to this witness, only a tendency, and nothing more, as illustrated, according to him, by the 2007 Quebec election. The judge related the testimony of this expert in these terms: [translation] [23] These systems can be classified in two large families: the majority system and the proportional system. In each main family, there is a variety of possible systems.

Thus, for example, in so-called majority systems, there are absolute and relative majority systems, single round and two round systems. These systems can also allow alternative votes. [24] In proportional electoral systems, there are purely proportional systems, mixed systems and single transferable vote systems. [25] Each voting system has its own characteristics, advantages and disadvantages that are generally associated with it.

Expert Seidle noted the advantages and disadvantages of each of these electoral systems. [26] As an example, according to expert Seidle, a majority system tends to favour more stable governments. However, this is only a tendency, because for the last forty years in Canada this system has occasionally resulted in minority governments. That was even the case recently in Quebec. [27] Conversely, the negative effect of a majority system is a tendency to under-represent the parties other than the party in power. There too, this is only a tendency.

Indeed, in the 2007 provincial election, each party had a number of seats proportional to the number of votes obtained. The Quebec Liberal Party received 38.40% of the seats for 33.1% of the votes, the ADQ 32.80% of the seats for 30.8% of the votes and the Parti Québécois 28.80% of the seats for 28.3% of the votes. [28] For expert Seidle, a country’s electoral system is part of a range of institutions that work together and reflect the values of the society.

Thus, those who decide to modify their electoral system do so as a function of their current social and cultural context. [29] Expert Seidle refused, contrary to the experts called by the petitioners, to prefer one system over another. For him, it would be unthinkable for the government of a democratic country to decide to change its electoral system without consulting its people. [ 49 ] The evidence suggested that the Canadian model of majority voting, like the one defined by the Election Act , generates parity.

Distortions may have been observed here and there, from one election to the next, but not to the point of violating the right of any citizen to effective representation. [ 50 ] The evidence, especially the testimony by expert Leslie Seidle accepted by the trial judge, supported the conclusion that the one-round single-member majority system that is currently in effect in Quebec respects the right to effective representation of electors, including the minorities identified by the appellants. [ 51 ] It should be recalled here that distortions are confined to the majority voting system or to any one system more than another.

Other voting systems, including the proportional method, experience deviations or distortions in the results that they can produce.

The trial judge gave an example in paragraph [78] of the judgment under appeal. [27] Moreover, it appears from the evidence that, even in proportional-type systems, legislative or effective thresholds are required. [ 52 ] Most often, it is a combination of numerous factors, resulting from the economic situation or from geographical (regional), demographic, or social causes, among others, that explain, at least in part, the election of a given candidate or of a relatively large number of candidates from the same party, and not merely the voting system itself or its procedures.

On the day after an election, the results are always subjected to the most diverse analyses. The vote is interpreted, or at least attempts are made to explain it, and conjecture is common. [ 53 ] It is important to remember that the Election Act provides mechanisms to ensure a certain level of parity.

For example, there cannot be a deviation in the number of electors in an electoral division of more than 25% of the quotient obtained by dividing the total number of electors by the number of electoral divisions, except for certain exceptions. [28] The Election Act tries to find a kind of equilibrium between the equal weight of the votes of each elector [29] and the representation of electors, specifically as a function of demographic, geographic, and sociological considerations. [30] This equilibrium is not necessarily perfect to the point of containing no distortion, but the contradictory evidence certainly does not allow for the conclusion that the voting system in use in Quebec has removed the voters’ right to effective representation.

The relative parity mentioned by the Supreme Court is achieved in this case. That is what the trial judge concluded overall, and his conclusion is also based on the evidence:

[translation] [79] In conclusion, the Court finds that in the same way that s 3 of the Canadian Charter cannot guarantee any right to a proportionaltype of electoral system or any other form of voting, it does not constitutionalize a one round single member majority system.. [80] Accordingly, this

section has neither the object nor the scope that the petitioners wish to give it. [81] In this case, each of the petitioners has exercised his or her voting rights in each of the last provincial elections. [82] They participate actively in public life, and use the political and media platforms that they deem suitable to promote their ideas. [83] In fact, Petitioner Gibb has joined several political groups exactly because of the political ideas defended by these parties withrespect to the electoral system. [84] Petitioner Daoust has done the same, and was a candidate for the Green Party during the December 8, 2008, election, specificallybecause of the political program of that party with respect to the voting system. [85] The other petitioners belong to political associations that also promote a proportional-type electoral system. [86] Finally, each of the petitioners is represented in the National Assembly by a Member. [87] Given the preceding, the Court considers that the rights of the petitioners that are guaranteed by s 3 of the Canadian Charterhave been fully respected. [54] The concept of effective representation does not have as its corollary a fixed organization of the National Assembly or theHouse of Commons.

The fact that one form of voting favours the election of a majority government or entails that, on occasion, smallerparties are not represented, is the result of a political choice. In Figueroa, Iacobucci J., writing the reasons for the majority justices,mentions: 37 Finally, although certain aspects of our current electoral system encourage the aggregation of political preferences, I do notbelieve that this aspect of the current electoral system is to be elevated to constitutional status.

In his reasons, LeBel J. argues that first-past-the-post elections favour mainstream parties that have aggregated political preferences on a national basis. This might, indeed, betrue. But the fact that our current electoral system reflects certain political values does not mean that those values are embedded in theCharter, or that it is appropriate to balance those values against the right of each citizen to play a meaningful role in the electoralprocess. After all, the Charter is entirely neutral as to the type of electoral system in which the right to vote or to run for office is to beexercised.

This suggests that the purpose of s. 3 is not to protect the values or objectives that might be embedded in our current electoralsystem, but, rather, to protect the right of each citizen to play a meaningful role in the electoral process, whatever that process mightbe.[31] [55] At first glance, the fact that the voting system makes it possible to elect a majority government that is not necessarily formedby the party that has received the largest number of votes may be surprising, but this possibility does not, in itself, constitute a violationof the right to vote that is enshrined in s 3 of the Canadian Charter or s 22 of the Quebec Charter.

Likewise, the participation of moremarginal parties in the public debate, whether or not they result in the election of a member, is one of the constituent elements ofeffective representation. [56] Once there is effective representation of citizens, which implies the possibility that each elector can exercise his right to voteperiodically, freely, and secretly,[32] be a candidate for office, vote for the party of his choice, and express himself in public, the right tovote enshrined in s 3 of the Canadian Charter and s 22 of the Quebec Charter is respected.

That is the case here. [57] In short, effective representation is not dependent on the electoral system, and the evidence does not justify asserting that thefirst-past-the-post system that prevails in Quebec makes the representation of citizens ineffective. On the contrary, the expert evidencetends to demonstrate that every system has shortcomings. Therefore, it cannot be concluded that the principle of effective representationis violated solely as a function of the electoral system.

Right to equality [58] In the Kapp judgment, the Supreme Court reiterates the two steps to be followed in order to determine whether there isdiscrimination within the meaning of s15(1) of the Canadian Charter: [17] The template in Andrews, as further developed in a series of cases culminating in Law v. Canada (Minister of Employment andImmigration), (SCC), [1999] 1 S.C.R. 497, established in essence a two-part test for showing discrimination unders. 15(1):

(1) Does the law create a distinction based on an enumerated or analogous ground?

(2) Does the distinction create adisadvantage by perpetuating prejudice or stereotyping? These were divided, in Law, into three steps, but in our view the test is, insubstance, the same.[33] [59] The trial judge was right to emphasize, as as part of his consideration of the first step, that the place of residence does notconstitute a ground enumerated in the Canadian Charter, nor can it constitute an analogous ground in this case. In fact, as in Westmount(City of) v. Québec (Attorney General),[34] the difference in the treatment of the English-speaking community alleged by the appellants(“the group under

section 15 being the English-speaking minority”) is a function of their place of residence (the “West Island”), not oftheir language. [60] The demarcation of the constituencies and the distribution of the electorate is an extremely sensitive political subject. Historyhas shown that there have been many proposals for electoral reform,[35] but that their adoption was often slowed because changing thefeatures of the electoral system was a subject of public controversy. The reaction of citizens to various draft reforms of the electoral

system proposed over the years testifies to the eminently political nature of the issues raised by the mere idea of amending the Election Act . In these circumstances, it is preferable that the detail of such amendments be left to the legislative authorities, and that the judicial power show appropriate deference. [36] [ 61 ] In Commission scolaire régionale de Chambly v. Bergevin , the Supreme Court specified three requirements to be met in order for there to be discrimination according to s 10 of the Quebec Charter :

(1) That there is a “distinction, exclusion or preference”

(2) That this “distinction, exclusion or preference” is based on one of the grounds listed in the first paragraph of s 10 of the Quebec Charter , and

(3) That the “distinction, exclusion or preference has the effect of nullifying or impairing” the “right to full and equal recognition and exercise of a human right or freedom.” [37] [ 62 ] The right of the appellants to equality when they exercise their right to vote is not compromised. The appellants have therefore failed to meet their burden to demonstrate the existence of discrimination within the meaning of s 10 of the Quebec Charter . [38] [ 63 ] The conclusion of the trial judge that the Election Act does not impair the right to equality is not in error in any way.

Section One of the Canadian Charter [ 64 ] Given that the appellants have not demonstrated any violation of the right to vote or the right to equality that are protected by the Canadian and Quebec Charters, a review pursuant to

section 1 of the Canadian Charter is unnecessary. CONCLUSION [ 65 ] For these reasons, I would dismiss the appeal, with costs, and dismiss the intervention, without costs. In this respect, the interveners specified in their brief that they would not seek legal costs, should they succeed. The Attorney General did the same, by not seeking costs against them. JACQUES DUFRESNE, J.A. [1] Including the United Kingdom. See Parliamentary Voting System and Constituencies Act 2011 (UK), 2011, c 1 ; UK , Parliament and Constitution Centre, AV and electoral reform (SN/PC/05317) by Isobel White, London, House of Commons Library, June 14, 2011.