Is PR unconstitutional?

Over the past several months I have read and listened to countless opinions from the proponents for and against proportional representation but not once have I seen anyone comment on whether proportional representation is a form of electoral process permitted under Canada’s Constitution.

The Charter of Rights and Freedoms is entrenched in the Constitution Act 1982. Section 3 of the Charter states “every citizen of Canada has the right to vote an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” It does not say political parties get to decide who will sit in the legislature.

The first in-depth analysis of Section 3 took place in British Columbia in a 1989 B.C. Court of Appeal decision on whether the Charter applied to electoral boundaries established under the British Columbia Constitution Act. For those who may not remember, B.C. had a hodge-podge arrangement of dual member ridings mixed with single member ridings and electoral populations that deviated by 70 percent or more. The court determined sections of the B.C. Constitution Act pertaining to electoral boundaries were unconstitutional.

The direction from the court resulted in the creation of the British Columbia Boundaries Commission Act and the regular adjustment of electoral boundaries to ensure that equality of voting power was protected. The court directed the province to ensure that representation by population was a key determinant, allowing the province a plus or minus 25 per cent variance based on supportable regional and geographic differences.

The court, in that 1989 decision, recognized ten core values that collectively, guarantee our right to vote under Section 3.

1. The right not to be denied the franchise on the grounds of race, sex, educational qualification or other unjustifiable criteria;

2. The right to be presented with a choice of candidates;

3. The right to a secret ballot;

4. The right to have one’s vote counted;

5. The right to have one’s vote count for the same as other valid votes cast in a district;

6. The right to sufficient information about public policies to permit an informed decision;

7. The right to be represented by a candidate with at least a plurality of votes in a district;

8. The right to vote in periodic elections;

9. The right to cast one’s vote in an electoral system which has not been “gerrymandered” – that is, deliberately engineered as to favour one political party over another;

10. The right to equality of voting power – representation by population is one of the most fundamental democratic guarantees and the notion of equality of voting power is fundamental to representation by population.

In his report How We Vote, David Eby states “no political party would be eligible to receive seats through a system’s proportional allocation method unless the party received at least five per cent of the overall vote in the province or region.” How does this reflect the core values stated above? It contradicts the right to have one’s vote count, the right to have one’s vote count for the same as other valid votes cast in a district, and the right to be represented by a candidate with at least a plurality of votes in a district.

How about the right to cast one’s vote in an electoral system which has not been “gerrymandered?” From the beginning, this entire process has been gerrymandered beginning with the “not so neutral” arbiter attorney general, the very biased public consultation process, the flawed process of the Referendum Act 2018 with no regional or voter thresholds, the lack of information available to voters to make an informed decision (the right to sufficient information about public policies to make an informed decision) and a campaign period intertwined with a municipal election campaign to confuse voters and take advantage of voter fatigue.

Since Madam McLachlin’s decision in 1989, the Supreme Court of Canada has reinforced the importance of equality of voting power. Much emphasis has been placed on establishing electoral boundaries that provide this equality.

How do you explain to the voters in a district that the MLA who received a plurality of votes is not eligible to take their seat in the legislature because some mathematical formula declares their party did not receive the right proportion of the popular vote? To David Eby and John Horgan – why have you put your own political goals ahead of the Charter rights of the citizens of this province?

I’ll conclude by quoting Madam McLachlin: “If in giving substance to this right to vote, the Court interprets s.3 as granting to citizens the right to a certain degree of proportionate representation, then legislation efforts must be measured against this standard and if they fall short, be declared unconstitutional,”

— Mike Morris is the B.C. Liberal MLA for Prince George. A retired RCMP superintendent, Morris was the solicitor general and minister of public safety in the previous government under Premier

Christy Clark.