Case Commented On: Fair Voting BC v Canada (Attorney General), 2025 ONCA 581
PDF Version: Democratic Charter Rights and First-Past-The-Post: A Shallow Conception of Democracy at the Ontario Court of Appeal
Despite many Canadians’ dissatisfaction with our current first-past-the-post (“FPTP”) election system, every attempt at reform so far has failed. The failed political attempts include the 2015 Liberal Party campaign promise to reform FPTP (at 27) and later abandonment of reform efforts, as well as the unsuccessful referendums in BC. A previous Charter-based challenge to the provincial system in Québec was dismissed in Daoust v Québec (Directeur general des élections), 2011 QCCA 1634. As of last month, the Charter challenge brought by Fair Voting BC and Springtide Collective for Democratic Society (collectively, the “Applicants”) is no exception. I will begin my commentary on Fair Voting BC v Canada (Attorney General), 2025 ONCA 581 (Fair Voting BC )by providing a summary of the Applicant’s claim, as well as some background on FPTP or single member plurality (SMP), compared to the proportional representation (PR) system advocated for by the Applicants. I will then review the majority decision in Fair Voting BC, highlighting what I believe to be a narrow and impoverished view of democratic rights under the Charter and the more balanced approach taken by Justice Dawe in his concurring reasons. I will conclude by emphasizing both the difficulty and the importance of judicial protection of democratic rights. Judicial restraint is commendable, and indeed essential, to protect the ideal of a free and democratic society. However, interpreting the right to vote as being limited to the mere ability to cast a ballot, as the majority does, risks abdicating the judicial responsibility to protect the foundation upon which the entire democratic system is premised.