Only the Courts Can Bring an End to the Regime of the Strongman in Canada

In a previous post, I put forward the idea that Canada’s system of governance is simply a more sophisticated version of the rule of the strongman to be found in medieval Britain. In short, the winner-take-all format of elections in Canada, embodied by the first-past-the-post method, puts aside any notion of the democratic governance in favour of the rule of those who can muster the necessary resources to win the most territorial fiefdoms (electoral districts). In other words, the electoral system’s bias toward territorial representation at the expense of the fundamental democratic principle that all votes should count and count equally allows a well-heeled minority to usurp the power of the majority.

During the last decade, the number of citizens who have come to realize that our present system is fundamentally flawed grew exponentially. Indeed, there were four referendums, two in B.C., one in Ontario and one in P.E.I. that were organized around the question of changing the voting system. Importantly, each of the referendums was set up in a fashion to ensure that reform would not come about. Essentially, the ballot question was reduced to, "is the suggested model the way to change the system."

Our politicians know all too well that it is much easier to gain a majority by uniting the opponents to a single option than to convince a majority of its merits. As a result, this type of referendum has the effect of saying no to a particular manner of solving the problem, but leaves in place the set of conditions that gave rise to the referendum in the first place, which is exactly what the politicians who arranged these bogus forms of public consultation desired.

This desire to perpetuate the status quo arises from the way in which the spoils of electoral victory are to be divided in the present system. True to our medieval past, the control of the public purse is perhaps the easiest way to personal profit. Our political system is rife with patronage in its various forms: appointments, contracts, tax benefits, and favourable legislative intervention, to mention just a few.

When a small minority controls the public purse, the spoils are divided amongst fewer supporters, which create great institutional incentives in keeping the system in place. Indeed, if the majority were to gain control, the financial pie would no doubt be distributed more equitably, but the portion size for the well-connected would be reduced. Given the choice between having a more efficient, equitable, and effective government sensitive to the well-being of the general population and having an inefficient, inequitable, and ineffective government that rewards the chosen few handsomely, it should not come as a surprise that the latter wins the day.

The other thing to keep in mind is that changing the electoral system from within the existing system is practically impossible. The political class, supported by the business sector and the media, enjoys an institutional lock on political power.

Essentially, the electoral system reduces effective voting to choices between two government options, the government of the day or the opposition. Other voting options do exist but they do not lead to any qualitative change of the distribution of power. Thus, many voters who would otherwise support a third option are forced to support either one of the warring factions and have their vote count or vote for their authentic choice and have their votes rendered completely ineffective. Keep in mind that after 143 years of forming federal governments in Canada, only two clans have been successful, the Conservatives and the Liberals.

Faced with the prospect of creating a more equitable electoral system that would allow other ideological options to participate in the exercise of political power – which would break the monopolistic control of the patronage machine that the ruling party enjoys – and staying with the status quo – which guarantees periodic control through alternating roles of forming the government or the opposition – it should not also come as a surprise that despite the obvious flaws inherent to the electoral system the ruling tandem is not inclined to change the system.

It is often said that the prospect of changing the system places those who are elected by it in a conflict of interest since they are the ones who profit the most. In other words, the fervour to make qualitative change is inversely proportional to the proximity to power. The closer you are, the less you are interested in changing the system.

If the question of how we are to govern ourselves were simply a question of political interest, the prospects of getting out from under the thumb of the strongman regime would be very bleak. Fortunately, with the adoption of the Charter of Rights, the question also carries with it matters of principle. In particular, the formation of a provincial or federal government must adhere to the fundamental principles of democracy and these principles cannot be put aside for reasons of political expediency. Moreover, in Canada, parliament is no longer supreme. Statutory law is subject to judicial review, and if legislation is found to contradict the values enshrined in the Charter, the Courts can render the offending legislation null and void.

At first glance, it would appear that the first-past-the-post does not conform to the substantive equality guarantees of the Charter; however, it will be up to the Courts to decide, most likely the Supreme Court.

With regard to section 3, the right to vote, the Supreme Court has defined this right as the right of effective representation and the right to participate meaningfully in the electoral process. In both instances, first-past-the-post discriminates against the right to vote for certain individuals.

Regarding effective representation, the formula used to turn votes into seats favours the political parties which offer the electorate the possibility of forming a government. Since majority governments are most often formed with less support than 50% of the electorate, it stands to reason that the voting power of some groups is being unduly diluted. As well, the system awards the power of majority to a minority, sometimes the party that did not garner the most votes, thereby undermining the rational connection between the means and the ends of the electoral legislation.

Regarding meaningful participation, the electoral system puts into place significant disincentives to vote for third parties. In fact, legislation that has the effect of reducing the number of votes that candidates from certain political parties would otherwise receive has already deemed to be the antithesis of the values of a free and democratic society and was determined to be unconstitutional. What remains to be done is to place the question of the constitutionality of the present voting system before the Courts.

In March of 2004, four Quebec residents deposed a motion at the Quebec Superior Court to have Quebec’s use of the first-past-the-post method to be declared unconstitutional. Having passed the test of admissibility, the case went to trial in December, 2008. Unfortunately, the trial judge did not rule in the plaintiffs favour, but he did so without commenting on any of the expert testimony or historic evidence that the plaintiffs brought to the trial. As a result, the case will go to appeal in December, 2010. We can anticipate that one or the other side will appeal the pending decision, which will eventually place this historic case under the purview of the Supreme Court.

Certainly, having the present voting system declared null and void would have major consequences for the manner in which we are governed. It should be pointed out that having first-past-the-post declared unconstitutional does not necessarily mean that a proportional voting system would replace it. Legislatures may opt for a different form of majoritarian rule brought on by the alternative vote or multiple-round voting.

That being said, it has yet to occur in public consultations in Ontario, British Columbia, and Quebec that significant interest was expressed for such alternatives. Importantly, during the process leading up to the adoption of a new voting system proponents of control and domination voting systems would have to play on an even playing field with the proponents of proportional voting systems, no supra majority requirement would impede the implementation of a new system, and the status quo will have eliminated as the default alternative. Within this context, it could be expected that the regime of the strongman would finally come to end in Canada.

If you are interested in learning more or in supporting the case, you can drop me an e-mail at bgibb17@yahoo.ca.