The Ontario Court of Appeal recently released its decision in Fair Voting BC v. Canada (Attorney General) (2025 ONCA 581).
Fair Voting BC, supported by Springtide Collective for Democratic Society, launched a constitutional challenge to Canada's "first-past-the-post" electoral system, arguing that the Canada Elections Act (SC 2000, c 9) provisions establishing the system violate sections 3 (the right to vote) and 15(1) (equality and non-discrimination) of the Canadian Charter of Rights and Freedoms (the "Charter"). Fair Voting BC claimed that Canada's longstanding electoral system produces unfair and arbitrary outcomes, discriminates against small parties, and contributes to the underrepresentation of women and minorities in Parliament.
Since Confederation, Canadians have elected their Members of Parliament and members of provincial legislatures using the single-member plurality, or "first-past-the-post" system, where the candidate with the most votes in each riding wins, even without a majority. Accordingly, a party may command the confidence of the House of Commons by winning a majority, or significant plurality, of the seats in the House which is not accurately reflected in the party's share of the national popular vote.
In Fair Voting, the Court of Appeal unanimously re-affirmed longstanding caselaw, which instructs that while section 3 guarantees effective representation and meaningful participation in the electoral process, it does not protect the right to a preferred outcome. These inferred rights under section 3 do not authorize judicial redesign of the electoral system.
Moreover, Canada's electoral system, according to the Court of Appeal, does not violate Canadians' equality rights under the Charter. The Canadian electorate may, according to the Court, freely choose candidates and cast votes based on any criteria they consider important, including sex or race, without triggering Charter violations. Furthermore, political affiliation is not a protected ground under the Charter.
Electoral reform, the Court of Appeal ruled, is not required by the Charter nor should it be in the hands of the judiciary. In other words, certain decisions, such as electoral reform, are inherently political. And the appropriate venue for those disputes is the political arena – not the courtroom.
In a similar vein, the Court of Appeal noted that policy analysis, such as a discussion on the merits of alternative electoral systems, falls outside the appropriate scope for judicial decision-making. Moreover, comments in the application judge's decision, which noted, for instance, that the percentage of women in Parliament is "too low" were, according to Justice Huscroft, writing for the panel, "out of place in a judicial decision concerned with determining a constitutional challenge."
Justice Huscroft further added that normative judgements concerning the desirability of diversity in Parliament are "highly contestable political judgements, not matters of constitutional rights governed by the Charter."
With respect to the role of courts in assessing the constitutionality of federal, provincial and territorial electoral systems in particular, the Court showed, however, some division. Dawe J.A. (concurring with the result that the appeal should be dismissed and the majority of the comments in the reasons for the decision) wrote separately to note his disagreement with some of Huscroft J.A.'s comments such as that there was, in the context of s. 3 of the Charter, no "role for the court in evaluating proposals for electoral reform."
In Justice Dawe's view, this was "a narrow conception of the scope of s. 3, and of the role of the courts in enforcing its guarantees," which was, as Justice Dawe noted, "at odds" with the rulings of the Supreme Court of Canada with respect to section 3, including, for example, a Supreme Court of Canada conclusion that section 3 "guarantees citizens not just the right to cast a ballot, but a right to "effective representation."
Therefore, Justice Dawe concluded, if section 3 guarantees a right to effective representation, the section "must constrain both the extent to which an electoral system can permissibly deviate from absolute voter parity, and the justifications that can permissibly be relied on by the legislature to support any such deviations." Herein lies, in His Honour's view, the reviewing power of the courts "to decide whether a particular set of legislative choices about how elections are conducted conforms with the demands of the Charter."
The decision in Fair Voting BC v. Canada (Attorney General) highlights and exemplifies the importance of distinguishing between legal and political advocacy.
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