Friday, October 21, 2011

It's Now Up To The Supreme Court of Canada

Seven years later, two refusals to entertain the evidence, we finally arrive at the end point of our journey: applying for leave to appeal our case concerning the constitutionality of the first-past-the-post voting system to the Supreme Court of Canada.

Essentially, the question we are asking of the courts is whether the current voting system respects the equality guarantees laid out in Canada's Charter of Rights and Freedoms.

That the Quebec Superior Court and the Quebec Court of Appeal did not grant our motion to have the articles of Quebec's Electoral Act that stipulate the use of the first-past-the-post method declared null and void did not come as any surprise. After all, Quebec still hasn't signed the the constitution circa 1982, which establishes the Charter.

Our expert testimony that provides both mathematical and empirical evidence demonstrating the systemic discrimination inherent to the system is barely mentioned in either decision. In the first instance, the judge wrongfully dismissed our case saying that the question was essentially political, and in the second instance the appellate court concluded that although our case was indeed judicable, such egregious democratic anomalies like a political party that received nearly a million votes but was denied representation and political parties that received less votes than another but still went on to form a majority government were not sufficient grounds to demonstrate that first-past-the-post impinged upon citizens's rights to effective representation.

Comments like that blow my mind.

In trying to wrap my mind around such outrageous statements, I can only come up with three explanations. The first is that the Quebec Appeal Court decided to evacuate any democratic norms from the notion of effective representation: being able to cast a vote, become a candidate, and being represented by a deputy is all that is required for representation to be effective. That the result of the electoral process is undemocratic does not matter. The second is that the since the Court didn't understand the nature of the question that was being asked, it consequently opted for the default option and denied the motion. The third is that judges acted upon the notion is that they are there to ensure the continuity of the state as it presently exists and will therefore not grant a motion that would effectively cause a significant rupture with the past.

All three scenarios give us grounds for an appeal.

In the first instance, the application of the Charter is guided by the values belonging to a free and democratic society and not a society that is free from the constraints that democracy imposes. In the second, it appears that it is only at the Supreme Court of Canada that we find the human resources and intellectual rigor to properly render an informed judgment on what is a fundamental question concerning Canada's system of governance. Finally, in the third, it is the primary role of the Court to uphold the rights protected by the Charter not to uphold a government's right to continue an electoral practice that contravenes each citizen's right to participate in a democratic election.

So we now arrive at a moment of truth, a moment that speaks volumes about how this nation-state is constituted.

For the Supreme Court to hear our appeal demonstrates a commitment to the values of a free and democratic society.

For the Supreme Court to decide not to hear our appeal would be an instance of dismissive silence that demonstrates that Canada has not yet evolved from its colonial past as an English settler state.

Our appeal will be filed before November 14, 2011.

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